Despite NATO attacks, as long as Milosevic refused to cede his authority, there were enough loyalists in the government who feared that, if Milosevic sank, they would sink in the same ship, that they formed a united front, determined to stay in control as long as possible. What did they have to lose? The end of the Milosevic regime in Serbia was a one-way ticket to the ICC for him and possibly his supporters.
In fact, this is what happened after a nominally pro-Western government took control. It issued an arrest warrant for Milosevic and sent him to The Hague to be prosecuted. "The Milosevic case illustrates the inherent risk an indicted leader will face when the government falls in the hands of the opposition." Gadhafi is no doubt aware of what happened in Serbia.
What about a political agreement that Gadhafi receive amnesty in return for an end of the atrocities? The problem, according to Friedman, is that there is no political authority Gadhafi can deal with that can hold the ICC in abeyance. As with American courts, the ICC's authority is independent of the usual political process, which is needed to ensure its independence.
The result is that the political process is rendered moot by making amnesty impossible. As the ICC was a product of the United Nations, perhaps the UN Security Council could negotiate a binding agreement for amnesty, but the complex political situation that exists within the Security Council makes that unlikely.
Friedman concludes, "So the domestic political process is trumped by The Hague's legal process, which can only be trumped by the UNSC's political process. A potentially simple end to a civil war escalates to global politics."
Today the ICC is not the only authority that can claim jurisdiction in crimes against humanity. It was a Spanish magistrate, a minor figure in the Spanish legal system, that claimed jurisdiction over Augusto Pinochet, a former brutal dictator of Chili. Pinochet had left power pursuant to at carefully negotiated political process, but was extradited to Spain from Britain where he was visiting.
Instead of undermining men like Gadhafi, the apparatus established to hold him accountable aborts the possibility of a political process ever solving the problem without a clear military victory. This means the only resolution is a fight to the deadly end - at a high cost to the civilians who are caught in the crossfire.
Friedman argues that so long as political authority is trumped by judicial authority, nations are denied the authority to negotiate binding agreements that transfer control from dictators to representative democracies before the fighting ends. In the meantime, civilians suffer in the name of bringing wrongdoers to justice (i.e., punitive justice).
Previously published on http://www.GenuineJustice.com.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
1
1
1
