Judging from recent comments by “human rights” organizations and international
legal experts, one might assume that Saif al-Islam, the son of the notorious and
recently deceased Libyan dictator Muammar Gaddafi, is the real victim in
While the International Criminal Court has indicted al-Islam,
interim Libyan Prime Minister Abdurrahim el-Keib has said that he will not be
turned over to the Hague and that “Saif al-Islam will receive a fair trial under
fair legal processes which our own people have been deprived of for the last 40
Libya, despite its chaotic problems, is creating an important
precedent for other nations to re-assert their authority against this dangerous
court, which has no checks on its power.
Writing on the Counterpunch
website, Franklin Lamb offers an insightful, if worrisome, view of the
International Criminal Court.
“It is the ICC judges, and not the ICC
prosecutor, who will decide whether a case will be held in The Hague or [in] the
country where the alleged crimes occurred...
once the ICC decides to open
an investigation of a case, national courts may not investigate that case and
are relieved from their obligation to do so. In addition, since the ICC has
issued an arrest warrant against Libyan defendants, all states – including Libya
– are obliged to cooperate fully with the Court.”
It has been reported
that Human Rights Watch “has called for al-Islam to be promptly turned over to
the International Criminal Court, having expressed its concern about the
killings of his father and brother when they were captured last
And in a more detailed statement in late November, Amnesty
International declared that al-Islam “must” be handed over to the
“If reports are correct that Saif al-Islam al- Gaddafi has
been captured by the Libyan authorities, he must be handed over to the ICC, and
his safety and rights must be guaranteed,” said Hassiba Hadj Sahraoui, Amnesty
International’s Middle East and North Africa deputy director.
happened after the capture of Muammar and Mutassim al-Gaddafi, we hold the
National Transition Council responsible for preventing similar harm coming to
Saif al-Islam al-Gaddafi, so that he can face justice for his alleged crimes in
a fair trial with no death penalty... justice that may have been denied with the
apparently unlawful killing of Muammar al- Gaddafi,” said the Amnesty
WHEN ONE considers these outrageous statements they might be
forgiven for thinking that what happened in Libya was not the overthrow of a
brutal dictator and his having died much as he lived, by the sword, but rather
the oppression of the Gaddafi family.
This points to a fundamental
problem with human rights organizations. One can assume it is only a matter of
time before we start hearing about “fears for the safety” of Bashar Assad in
Even more frustrating than the colonization of post-conflict
situations by human rights organizations, who suddenly discover abuses after
having ignored them for years, is the secondary colonization of the
post-conflict period by “international law.”
Once upon a time,
international law was considered binding between states and arbitrated with the
theory that the states voluntarily submit to such arbitration. But in recent
times it has grown so that it gives itself supra-national
Consider the logic: The ICC is an international organization,
upon which there is no oversight, that adjudicates for itself the power to
investigate cases wherever it wants and rules that independent countries must
then stop their investigation of a specific case and are “obliged” to cooperate
with a court over which they have no say.
This is part of the larger
European legal fad towards “universal jurisdiction” whereby European courts have
assigned themselves the jurisdiction to prosecute crimes committed outside of
Europe. Cynics might say that Europe, having lost its colonies around the world
following World War II, wants to retain certain colonial- like institutions with
which it can place on trial anyone in the world.
One need not get into an
argument about neo-colonialism or bash “western imperialism” to realize that a
state, no matter how chaotic, should always reserve to itself the power to
prosecute its own citizens for crimes committed on its own
Countries that respect their sovereign jurisdiction, such as
the United States, China, India, Israel and Turkey have not signed or have
withdrawn their signature to the Rome Statute of the International Criminal
Court. Thus, they are not bound by the ICC.
It might be understandable
for some countries with no real, functioning central governments, like Somalia,
to submit to the jurisdiction of the ICC if they feel they cannot prosecute
vicious war criminals.
But ironically, it is the countries that do have
functioning governments that have given up their rights.
states have eaten from the poisoned tree of universal jurisdiction and
supra-national law, including Kenya, which made the mistake of referring a list
of suspects to the ICC following post-election violence in 2007-2008. In 2009
the ICC opened an investigation into at least six men accused of coordinating
Other countries who have allowed the ICC to meddle in their
affairs include Rwanda, Sierra Leone and Ivory Coast, with former President
Laurent Gbagbo of Ivory Coast being flown to the Hague in late November 2011. It
is as irrational for a Dutch court to prosecute wayward African warlords as it
would be for a court based in Beijing to award itself the power to do
These nations have no one to blame but themselves for waiving their
rights, but Libya, at least for now, is standing strong and demanding that Saif
al-Islam, a notorious playboy, plagiarist and human rights abuser, be tried, and
probably executed, on his own soil.
The writer received his PhD from the
Hebrew University of Jerusalem and is a fellow at the Jerusalem Institute of