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The Crimes of Gadhafi: ‘Justice’ within International Law

Contributed by Yazan al-Saadi

In the “City of God,” St. Augustine tells the story of a pirate captured by Alexander the Great. The Emperor angrily demanded of him, “How dare you molest the seas?” To which the pirate replied, “How dare you molest the whole world? Because I do it with a small boat, I am called a pirate and a thief. You, with a great navy, molest the world and are called an emperor.”

Noam Chomsky, Pirates and Emperors

As governments of the West Asian and North African region continue to face assertive masses yearning for political, economic, social, and legal rights, the imbalanced arrangements that structure the international realm endure. Many commentators, viewing the melodrama of the so-called “Arab Spring” (a label that is too crude and misleading), seem to have missed out or intentionally ignored that this long-denied desire for equality, dignity, and self-determination does not simply end at the borders of these states. There is also an underlying desire that the masses expect a fair and dignified treatment beyond their homes as well. With that outlook in mind, allow me a moment to muse on the erratic nature of “Justice”, particularly on the global stage.

In the barest of definitions, “Justice” is about being fair, equitable, and reasonable. We, silly humans, tend to confuse that with “Law”. Law is a system (matrix, structure, modus) of rules (controls, practices, customs) agreed upon (recognized) by a particular (or exclusive) country or community, which regulates and arranges the actions and behaviors (even thoughts) of those that fall within it. This device called “Law” is enforced by punishment; from a pesky fine to a messy beheading (in other words, sanctions to shock-and-awe).  To enforce a punishment, you have to have “power” to do so. “Power”, in its barest of definitions, is the ability to act (and even not-act) as a faculty for an effect or “the ability to make others do what they otherwise would not do”.

It sounds so simple, but it’s dreadfully more complicated than that. There’s this whole issue with the type of power used (or not): the context of the event (as in, what/where is the environment, who are the users and receivers/ subjects and objects of said power, and the context in terms of “time” it takes place), and, embarrassingly, the underlying stench of Justice, always lingering in the background. Hence, “Law” does not mean “Justice”, and “Justice” does not need “Law”, but they fool around with each other copiously.

This is more apparent in the international realm, where the system is designed, narrated, and dominated by a sliver of the global populace (the rich, the well-armed, and so on) and is consistently shrouded with the titillating pomposity of justice. And, in this worldwide theater, the complications present within the naked, personal aspects of Justice, Law, Punishment, and Power are magnified a billion-fold. There may be a foundational universal awareness of the glories and blemishes of these fundamentals, burrowed deeply in our collective consciousness, but the articulation, presentation, and prioritization of these concepts differ. This, however, does not mean they differ value-wise from house to house, street to street, nor culture to culture, state to state.

Mashriq Quarterly Magazine

The recent uprisings, revolutions, and festivities erupting in the West Asian and North African region are steeped in desires for “Justice” in terms of political rights, economic standards, and social position vis-à-vis the dominating few in the state. Much of the assorted coverage has highlighted the demand of the “masses” for justice, peacefully and violently, yet, few have noted the unspoken sentiment behind the protests for “international” or let us say global fairness and equitability. The structure of “the international” and of peoples’ experiences with it can be seen as a reflection of the micro-resistance we’ve seen from Morocco to Bahrain, Syria to Libya. The domestic is always tied, reflects, and interacts with the international, and vice versa; as beyond so below, to paraphrase that irritating, yet profound, cliché.

It should come as no surprise that many of these totalitarian, repressive systems would not exist nor sustain themselves without some “external” service; whether it’s political, financial, or even homely torture advice. Whatever the justifications are for the varying relationships between the different regimes and others, a relationship did and continues to exist, and certain wrongs were committed and/or enabled. One wonders, where does the cloak of “Justice” lie here?

There is an additional wrinkle. The violence, repression, and forms of brutality conducted by these besieged governments (and if they survive, will continue to do) is similarly being conducted by “other governments” towards their own population or to another group. Some of these “other governments” are not in disfavor of the power holders (law enforcers) of the international realm; while some are the power holders (law enforcers) of the international realm. How fares “Justice” in this conundrum?

Consider the charges of “Crimes against Humanity” by the International Criminal Court against international extraordinaire of charm, Mu’ammar Gadhafi.

Gadhafi is being charged for “crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces.”   Here’s a tacky pdf of the charges by the ICC, and here is the thought process behind the charges apparently.

Much frenzy has been whipped up (albeit deservingly) against Gadhafi, the outrageous part of which is the idea of Gadhafi troops actively ingesting Viagra to give their rampage of rape an added robustness. The sheer thought of it secretes barbarity and evil. Widely reported and repeated by the US representative in the Security Council, this claim has turned out to be not as certain and no evidence has been found of it, nor of the other allegation, by “US Intel”.

One journalist, Patrick Cockburn, would note in an opinion article later:

“Everybody reporting out of Tripoli expresses understandable scepticism about what government minders seek to show them as regards civilian casualties caused by Nato air strikes or demonstrations of support for Gaddafi. By way of contrast, the foreign press corps in Benghazi, capital of the rebel-held territory, shows surprising credulity towards more subtle but equally self-serving stories from the rebel government or its sympathisers.

“Ever since the Libyan uprising started on 15 February, the foreign media have regurgitated stories of atrocities carried out by Gaddafi’s forces. It is now becoming clear that reputable human rights organizations such as Amnesty International and Human Rights Watch have been unable to find evidence for the worst of these.”

Cockburn’s observation is striking, not only in terms of the unequal standards of journalism, but that the same can be said about the manner in which law is applied internationally.

From what I gather, some of the charges against Gadhafi may not have evidential worth. Nor, when reading the charges, have Gadhafi’s acts paled in scale of viciousness, blood, and destruction of acts to those by other countries; nor has the conspiracy by Gadhafi and co. been any more diabolical than the GCC’s own nefarious plans and actions in Bahrain that substantially crushed the movement for change and dignity there. Nonetheless, the mighty apparatus of international law has been unleashed against him and his regime. There is no doubt that Gadhafi deserves judgment. Remaining in power for more than 42 years does not come gracefully. He and those around him have indeed performed acts that are reasonably justified grounds to hang them. Funny enough, that wasn’t an ethical issue for many nations and businesses that were rushing towards Tripoli in as recent as 2010.

But “Justice” is not present here, in my eyes and in the eyes of many, because the same vigor of applying international law against Gadhafi lacks the same zeal when it comes down to its application on other, more powerful nations.

One can look at the illegal Anglo-American invasion of Iraq and the devastating battles throughout the occupation as a premium example. The US military’s bombardment and assault on Fallujah, twice, in 2004 has been horrific, with much evidence pointing to the use of WMDs like depleted uranium shell, phosphorous weapons, and cluster bombs that not only are destructive during use, but continue to effect the population to this day. Not to mention the systematic use of torture and rape by US forces and their allies, the unrestrained use of mercenaries (private security firms), and magnitude of death and the number of refugees.

There are more documents, photos, videos, and testimonies in regards to the “war crimes” and “crimes against humanity” in the Iraqi case (and US actions elsewhere) than there are in the Libyan case. The former is still debated and still denied, while the latter, in the span of two months, has been settled and action has been taken. Iraq has not even received any significant compensation, and, absurdly, some US politicians have urged Iraq to pay for its own invasion. Even then, all the evidence available and those who present it will be subjected towards a high standard of scrutiny, the leisure and privilege of which is not extended to countries like Libya, Zimbabwe, and their ilk.

“Justice” is simply non-existent here, because to enforce “international law” and “human rights” the mechanisms in place are radically tilted to the interests of the powerful, whether by lack of enforcement or the style of its enforcement. The International Criminal Court, the International Court of Justice, and other entities do not have the enforcement capabilities and rely heavily on the Security Council for action. The Security Council, in itself, is the epitome of the imbalances in the international realm, where any documentation or charge against its seemingly untouchable members can simply be vetoed away. And thus, most of the actions by the ICC or ICJ are aimed towards weaker nations. Hence, for many, these courts are “discriminatory”.

In fact, contemporary international law, the laws that govern warfare, and the institutions that preside over them are rooted and sculpted within the context of the (neo) European experience. Much of its ideological and legal conceptions are inherently derived from the needs and changes that European, or neo-European, societies have undergone and, as many critical theorists have pointed out, the inherent foundations of contemporary international law and its mechanisms manifested itself in the time of Empire and Colonialism in order to legitimize and structure these acts . The concept of the state and the citizen, and those residing outside such categorizes, were defined by the very few, while disguised in the garments of universalism and in name of the “international community”.

Law, people tend to forget, is neither timeless nor naturally just. Acts in its name should always be assessed, scrutinized, mocked, and, at rare times, celebrated so that it truly can be just and complete. Indeed, it is only by refusing international law wholesale, by calling it and its friends out not only based on what it is not just in practice, but also in its history and its theory, that we might be able to move beyond the current restrictive structures of international law. It is here that one might say: “I do not recognize international law so long as its foundations remain provincial and so long as its practices remain unequal”. Paradoxically, “Punishment” is considered illegal in international law, and the powerful tends to find other pretexts that only provide a flimsiest veil for punishment.

Like the challenges seen domestically within the Arab World, the international structure of law demands challenges by the weaker, the majority of the world, from states to individuals. There has to be a persistent and powerful outcry by all against the exploitation and marginalization of Justice, and its unequal application. There has to be pressure applied to every nation, no matter how powerful or untouchable they seem, to be held to the same standard in law. In simpler terms, there needs to be an international legal intifada.  True “Justice” only comes through struggle, never easily, and mainly bitter sweet. International law, and its alleged enforcers, have always been forced over time by the weak to become more just; the echoes of decolonization are still ringing in the background reminding us that the fight for equality, for fairness, for “Justice” is far, far from over.

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