Should Gaddafi Be Tried by the International Criminal Court?

A year ago, Sudanese President Omar al-Bashir thumbed his nose at the International Criminal Court when he got on a plane to Chad and received a red-carpet welcome in N’Djamena — despite a warrant from The Hague authorizing his arrest for war crimes in Darfur.

Chadian officials made clear that Bashir would be allowed to return home without a hassle, regardless of their treaty obligations as representatives of an ICC member state.

“We are not obliged to arrest Omar Hassan al-Bashir,” Ahmat Mahamat Bachir, the country’s interior and security minister, told reporters at the time. “Bashir is a sitting president. I have never seen a sitting president arrested on his travels by the host country.”

Instead, the Chadians gave the alleged genocidaire a key to their capital city.

As Bachir explained the decision to the BBC: “We are with the rule of law, and everybody has to pay for his mistakes, and for any crime he commits, but when it will be selectively and targeting only African leaders it should not be accepted.”

A year later, we hear echoes of the same reasoning in the argument against the arrest warrant issued for Muammar Gaddafi. “Everyone knows that the ICC always acts at a moment that is not convenient, to put oil on the fire,” African Union Commission chairman Jean Ping told AFP, while calling on the AU’s 53 members to reject their legal responsibilities.

Again, a war criminal could get away with murder — if only for the time being.

I wrote last year that the ICC should act urgently to correct a perception of anti-African bias that threatens its credibility as a guarantor of human rights. At the risk of sounding like a broken record, allow me to make the point again.

Let’s remember that while the ICC’s loudest supporters rail against dictators and tyrants from ivory tower perches in New York and London, all the court’s open investigations — in Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur, the Republic of Kenya, and now Libya — relate to situations in Africa; this, despite evidence of serious crimes committed by governments in other parts of the world. Indeed, some of these governments (including our own) are effectively beyond the jurisdiction of the ICC since they aren’t state parties to the Rome Statute that established the court.

So why shouldn’t the Africans ask, as Ping did at a continental summit earlier this year, “Why not Argentina, why not Myanmar … why not Iraq?”

Unless this question is addressed, and soon, the ICC risks becoming irrelevant and obsolete. The world’s only permanent court to try humanity’s most heinous crimes will find itself reduced, in practice, to a political tool beholden to Western governments and their interests.

If the ICC is worth saving — and I think it is — we should all raise our voices for positive change in the court’s prosecutorial discretion.

Waiting, to be clear, means letting war criminals walk free.

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