By Erna Paris, Ottawa Citizen October 21, 2011
The early al Jazeera videos graphically depicted Moammar Gadhafi's last moments. In unedited footage we see the Libyan dictator at the instant of his capture. He is bloodied and dazed, but still standing upright as he is shoved and pushed by his captors. He does not appear to have the critical head wound that reportedly killed him. In a second video, men lunge at his lifeless body like a pack of hyenas attacking their prey. They tear off his shirt and roll him around the ground shouting Allahu Akbar, God is Great.
"We were serious about giving him a fair trial. It seems God had some other wish," the chief spokesman for the National Transitional Council explained to the assembled media.
The poor deity - once again held responsible for the heinous acts of His underlings. Someone did suggest feebly that Gadhafi was shot because he was resisting capture, but the attempt at an excuse didn't really matter. The leadership of the National Transitional Council knew they would not be officially challenged for killing the wounded tyrant in lieu of sending him to trial; for just one day earlier, U.S. Secretary of State Hillary Clinton had explicitly condoned the prospect of an assassination. "We hope he can be captured or killed soon ..." she told university students in Tripoli during a surprise visit to Libya. Clinton simultaneously encouraged the country's new leadership to adopt a just democracy that would be free of retribution (presumably of the sort she had just recommended).
Two related concerns emerge from this sudden end to the Moammar Gadhafi story, and both of them point to the struggle between international law and power in the contemporary global arena.
A bit of recent history may illuminate the problematic outcome. Last February the UN Security Council voted unanimously to refer the abuses of the Gadhafi regime to the International Criminal Court, where fair and transparent trials could proceed according to the rules of due process, and where those who had committed massive crimes against humanity might be held accountable. Three weeks later, the council subsequently agreed to activate the legislation known as the "Responsibility to Protect" by enforcing a no-fly zone over Libya. Following these resolutions, the leaders of the Transitional National Council wrote to the chief prosecutor of the ICC, in April, to state their commitment to trials of major perpetrators and the rule of law. But in May, NATO tried (and failed) to assassinate Gadhafi, in direct defiance of the Security Council ICC resolution; in other words, illegally.
It's a lot easier to eliminate your enemies than to see them tried in a courtroom. Trials take time and cost money; witnesses must be called to testify; there must be a fair defence; the judges must then weigh the evidence and come to a measured conclusion. No question about it; revenge is undoubtedly sweeter in the short term. But the long-term stability of a nation transitioning out of civil strife is better served by justice than by violence. Post-Gadhafi Libya is a volatile, war-ravaged wasteland with an untried government and no institutions. It is unfortunate the proposed new democracy has begun with the savagery of a gruesome killing.
If breaching a Security Councilapproved resolution to capture, not kill, Gadhafi is the new Libya's first casualty, the role the United States has played by promoting frontier justice in opposition to international law - and, one may add, in opposition to its own laws against political assassinations - is similarly worrisome, especially in terms of America's emerging policies under President Barack Obama. Think for a moment about the terrible twins, Osama bin Laden and Saddam Hussein. In her stated approval of a potential assassination, Hillary Clinton effectively echoed the words of president George W Bush a decade earlier when the latter announced he wanted bin Laden "dead or alive." But in 2003, the U.S. did agree to a trial of a captured, not assassinated, Saddam Hussein. That the trial itself was profoundly flawed is important, but less so, in my view, than the recognition that even the Bush administration felt the need to pay lip service to the emerging demands of international criminal justice. The Obama administration, on the other hand, seems to entertain no such qualms.
Osama bin Laden was a hunted man, and rightly so; but his assassination in May 2011 deprived the world of a trial that would have created an important record of evidence for posterity, including for the Arab world; satisfied his victims' need for justice, as opposed to crass retribution; and sent out a message that those who perpetrate crimes against humanity will be held accountable for their acts.
Unfortunately, U.S. state-sanctioned assassination is becoming a disturbing trend. Unmanned drone aircraft kill individuals designated as terrorists by secret fiat. In September, the Obama administration went further still, killing Anwar al-Awlaki, a U.S.-born citizen who was living outside the country.
Does any of this matter to the American public? The Obama administration is betting, perhaps wrongly, that it does not.
Should it matter to the rest of us? Yes, it should. Extrajudicial assassinations signal a breakdown of the international legal order we necessarily depend upon. Such policies fly in the face of the foundational principles of moral and legal justice that were codified at the post-Second World War Nuremberg Tribunal, where the top Nazis were tried. The judges at Nuremberg recognized that revenge and its inevitable counter cycles are detrimental to long-term peace.
It is an affront that Moammar Gadhafi was killed before he could be put on trial before the international community. And an affront that this illegal act was openly condoned by the United States.
Erna Paris's most recent book is The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.
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