Ending impunity?
By its own standards, its intervention in Libya makes the ICC culpable for the same crimes it prosecutes
International criminal justice is partly motivated by outrage. We read about shocking actions of leaders worldwide and feel prompted to take action that expresses moral indignation towards it.[1] There is a basic instinct that those who do morally outrageous things ought to be punished for what they have done, and that they cannot continue to act with impunity. In international criminal law, this means that state sovereignty does not spare a state’s leader from justice: the ICC will intervene if a state is unable or unwilling to investigate serious crimes.[2]
On the other hand, international criminal law – like criminal law itself – is not a subject that can easily divorce itself from politics. It is no surprise, therefore, that its institutions have been subject to political scrutiny. The ICC has been rebuked by African leaders as neo-colonial and disparaged as the “Infamous Caucasian Court”.[3] Critics of international law have carved out an anti-colonial space and brought similar arguments to its scholarly domain.[4] They have also described how the use of “human rights” in international law has served neo-colonial and imperialist purposes.[5]
There is not a balanced representation around the world when it comes to which leaders face international scrutiny, and the criticisms of African leaders against the ICC resonate because all the ICC’s investigations have overwhelmingly targeted Africa.[6] However, it is also the case that arrest warrants issued by the ICC have dealt with deeply disturbing and severe crimes that generate emotional reactions and retributive impulses on part of the public. For instance, the ICC’s arrest warrants for members of the Lord’s Resistance Army in Uganda targeted members that allegedly enlisted children in their army and committed other crimes such as sexual enslavement inducing rape.[7] The Lord’s Resistance Army became known worldwide in 2012, with a video targeting its founder becoming the most viral video in history shortly after its release.[8] These are crimes that catch the attention of people, globally, who wish to see them punished and deterred.
It is no wonder that the ICC’s mandate is to “end impunity”[9]: within us, these crimes generate a visceral reaction: “they can’t get away with that.” To many, it does not matter what political baggage institutions like the ICC carry: if they are able to punish and deter grotesque behaviour, then they ought to. This makes international criminal justice largely retributive.[10]
The ICC’s and NATO’s intervention in Libya carries with it many areas ripe for debate in international criminal law. With allegations as strong as genocide against Muammar Gaddafi and subsequent pleas to the ICC for investigation,[11] there were two basic ways to look at the issue. First, international actors heard allegations of crimes against humanity and were immediately prompted to act. This did not only involve wanting to stop the violence, but a desire to remove Gaddafi from power and prosecute him.[12] But on the other hand, we were faced with an incident where regime change was overwhelmingly supported by western powers with a propensity to violate the sovereignty of African and Middle Eastern nations.[13] Donald Rumsfeld, one of the United States’ Secretaries of Defense who had led a regime change war in Iraq years prior, had placed Libya alongside of Iraq on a list of governments the United States planned to overthrow.[14] There may have been genuine concerns for Libyans’ human rights, but the political motive to overthrow Gaddafi is hard to ignore in light of considering African ambivalence about the ICC.
Another notable component about the intervention in Libya, however, is that the overthrow of Gaddafi did not offer or restore human rights to Libyans. Ten years after Gaddafi’s death, Libyan citizens have lamented and expressed nostalgia for the past. “Since [2011], we’ve seen [ten] years of injustice, bombing, and kidnapping,” Bani Walid resident Mohammad Abi Hamra told reporters, for instance.[15] The civil war has raged on. On top of the restoration of the Libyan slave trade, Libya went from a country with the highest Human Development Index in Africa to a failed state.[16] Retribution against Gaddafi may well have been achieved even if it was not through the legal system: he suffered a gruesome and humiliating death, some of which was captured on video.[17] However, post-Gaddafi Libya lacked the human rights that some may have been expecting after Gaddafi was gone.
While perspectives critiquing neocolonial attitudes in the ICC and western powers can valuably be applied to Libya, what is more interesting from a legal perspective is how the ICC itself is implicated in Libya’s current condition today. That is, the debates should not stop at the typical back-and-forth about whether it is justified to satiate retributive impulses if they further an arbitrary and politicized goal of western nations. Rather, we should be asking ourselves what responsibilities the ICC has as an institution has when conducting prosecutions and investigations. In other words, the concern is not merely that the ICC, in doing its job, is conducting investigations arbitrarily. Nor is it that the arbitrariness targets Africans while failing to hold western countries to the same scrutiny. What we need to concern ourselves with, rather, is what conclusions we may come to if we hold the ICC itself to proper standards of criminal responsibility for the crimes that the ICC itself prosecutes.
The ICC’s intervention in Libya, I argue, places responsibility on the ICC for the same crimes it prosecutes. Namely, I argue that as a party to the intervention that ultimately led to Gaddafi’s demise, the ICC bears responsibility for violations of human rights existing in Libya to this day. As such, its intervention was not only counterproductive to the promotion of human rights in Libya but contributed to acts of the type that it would typically prosecute. What can be learned from this, then, is that the catharsis and moral righteousness gained from retribution or the pursuit of justice can actively conflict with the goal of protecting civilians from the crimes the ICC is concerned with. It is therefore not the case that the pursuit of international criminal justice necessarily aligns with the promotion of human rights.
I will proceed as follows. First, I will provide background information on the ICC’s intervention in Libya and its aftermath. Second, I will review the role of the pursuit of justice and retribution in international criminal law and in the Libya intervention. Third, I will do an overview of the law as it applies to the acts of violence committed in Libya. Fourth, I will connect the ICC’s pursuit of justice in Libya to the human rights violations committed in Libya by actors other than Gaddafi. I will then conclude that while – at best – the intervention in Libya brought about retributive catharsis for certain parties, it did not only fail to improve Libya’s condition but contributed to damaging it. This suggests that the pursuit of justice against those for whom we wish to “end impunity” can easily conflict with the goal of protecting civilians from the crimes the ICC is concerned with prosecuting in the first place. As such, those concerned with international justice must interrogate whether it should be primarily aimed at ending impunity or facilitating human rights.
I. The intervention and its effects
On June 27, 2011, the ICC issued arrest warrant for former Libyan leader Muammar Gaddafi, his son Saif al Islam Gaddafi, and Libya’s intelligence chief Abdullah al-Senussi.[18] The arrest followed an ICC investigation, opened March 2011, for crimes against humanity committed since protests on February 15, 2011.[19] Gaddafi, his son, and Senussi were charged with the murders and persecution of unarmed civilians as crimes against humanity under Articles 7(1)(a) and 7(1)(h) of the Rome Statute.[20]
While the Eighth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) referred to violence on all sides of the conflict in Libya,[21] it claimed that Gaddafi, his son, and Senussi were most responsible for the crimes identified by investigators.[22] These crimes included ongoing alleged unlawful imprisonment, torture, and ill-treatment of conflict-related detainees.[23]
Accusations against Gaddafi prompted a sense of urgency. The Libyan Deputy Permanent Representative to the United Nations (UN) Ibrahim Dabbashi accused Gaddafi of genocide and claimed he was flying mercenaries from unidentified African countries.[24] Gaddafi had a history of repressing opponents, but evidence of genocide – and a socially salient group that was targeted for genocide – was lacking. There were also claims that Gaddafi was using rape as a weapon of war, though Amnesty International failed to find evidence for these allegations.[25] Nonetheless, images of bloodshed spread very quickly after protests in Libya erupted and prompted demands for action.[26] Soliman Bouchuiguir – who was the president of the Libyan League for Human Rights – claimed in March 2011 that there was an impending “bloodbath” and massacre akin to Rwanda.[27] But this, too, was speculative and unsubstantiated, as was the claim concerning his African mercenaries; here, the media took captured or dead Black men to be evidence that they were mercenaries rather than African migrants and Black Libyans.[28]
Given the uncertainty of the information to justify intervention,[29] the international community acted remarkably fast. The Libyan situation marked the second time the UN Security Council used its discretion under the ICC Rome Statute to refer a matter to the Court for possible prosecution, citing attacks against Libya’s civilian population in Resolution 1970.[30] It also marked the fastest period that the Court has ever become involved in a situation; namely, just a week after it started.[31] As noted by Mark Kersten, the Court had opened an official investigation and issued arrest warrants a mere four months later, following numerous airstrikes and a naval blockade from NATO.[32] The United States, meanwhile, partook in an arms shipment to Libyan rebels that ultimately ended up in the hands of Islamist extremists.[33] France and the United Kingdom also provided weapons and supplies to the rebels.[34]
Notably, Gaddafi called for a cease-fire and agreed to negotiate with NATO, but NATO refused.[35] They instead continued to carry out airstrikes, some of which killed numerous civilians.[36] With NATO’s help, the rebels eventually took Tripoli[37] and killed Gaddafi while he was attempting to escape.[38] This may have been a cause for celebration for some, but it by no means improved conditions in Libya.
I.I. Human rights violations and desolate conditions
On top of NATO’s strikes against civilians, which averaged around 150 air strikes per day and killed “hundreds – if not thousands – of people”[39] numerous others suffered at the hand of actors other than Gaddafi and his government. As noted by Khalid Kaim and others at the New York Times, western forces were overstepping the mandates from the United Nations and NATO by doing more than simply protecting civilians, and instead attacking stationary troops and arming the rebels.[40] In addition, NATO targeted Libya’s state television and killed three civilian journalists,[41] contrary to UN Resolution 1738 (2006) banning attacks on journalists,[42] and the United States was accused of firing bullets onto civilians from an Apache helicopter in Zawiya.[43]
Those on the rebels’ side also share blame for violence in Libya, some of which belonged to religious extremist groups.[44] The rebels were said to have tortured darker-skinned Libyans and migrants, cleansed villages of Black Libyans, and raped Black women in refugee camps.[45] In general, they have targeted Black Libyans due to associating them with Gaddafi and committed gruesome and murderous acts against them.[46]
Since Gaddafi’s death, Libya has effectively been a failed state that remains in a civil war with rival militias fighting for power. Worse, Libya has become home to a slave trade operating through migrant routes, where African migrants are traded like commodities. Migrants attempt to escape to Europe only to be enslaved, tortured, or killed.[47] In 2017, the ICC’s chief prosecutor Fatou Bensouda deemed Libya a “‘marketplace’ for human trafficking”.[48]
II. Justice, human rights, and regime change: what was the rationale behind the ICC’s intervention?
Although the aftermath of Libya’s intervention has undoubtedly been chaotic, there was a strong and adamant drive within parts of the international community to intervene. There were two types of ostensibly related rationales for the ICC’s intervention: i) instrumental justifications, namely removing Gaddafi and protecting Libyans, and ii) retributive justifications, namely punishing Gaddafi for crimes and bringing him to justice.
There was a strong push among scholars and political and legal actors for the ICC to prosecute Gaddafi for instrumental reasons. India’s ambassador to the UN argued that the referral of Gaddafi to the ICC would bring an end to violence.[49] Middle East scholar Juan Cole argued that the ICC indicting Gaddafi would bring about the end of his rule by giving his inner circle incentives to defect lest they face prosecution and sanctions.[50] ICC chief prosecutor Luis-Moreno Ocampo said that Gaddafi’s arrest had the aim of protecting civilians.[51] These justifications for intervention are instrumentally aimed at a goal of removing Gaddafi from power and protecting civilians, and not necessarily at punishing him for his crimes.
Punishment, retribution, and justice, however, are rarely left out of the conversation in circumstances like these and has a substantial presence in international criminal legal debates. On one hand, the retributivism in international law is treated as problematic for numerous reasons. One is that it ignores restorative options and alternative conceptions of justice that are becoming more popular internationally.[52] Further, as argued by Robert Sloane, it “presupposes both a coherent community and a relatively stable sociopolitical or legal order characterized by shared values.”[53] It was simply not the case that all Libyans or all members of the international community wished to see Gaddafi punished. Sloane continues to argue that retribution does not offer adequate guidance on proportionality: how do we know which punishments are proportionate to the most gruesome crimes, and what metrics can we use?[54] If the allegations against Gaddafi were all true, what would be enough to satisfy those impacted that justice had been served?
On the other hand, some argue that retributivism aligns well with the goals of international criminal law and properly informs processes like sentencing.[55] They also view punishing perpetrators to have intrinsic moral value;[56] something that aligns with the basic impulse of “they cannot get away with that.” Retributivism, as well, aligns with the role of prosecution at the ICC. As noted by Alexander Greenwalt, the ICC gives “unprecedented discretion” to prosecutors when determining which cases should be brought to the ICC. This emphasizes culpability rather than broader policy decisions, which, Greenwalt argues, gives a “strong presumption that prosecution should follow the commission of international crimes.”[57]
These considerations were undoubtedly present in the support for prosecuting Gaddafi. Organizations like Human Rights Watch, for instance, claimed that Gaddafi needed to be prosecuted regardless of whether he stepped away from power, and that he could not simply offer to go in exchange for amnesty because “[international] law rejects impunity for serious crimes.”[58] Further, spokespeople from the US and UK spoke of the warrants in moral language. White House spokesman Jay Carney supported the arrest warrants on the grounds of “justice and accountability”, while UK Foreign Secretary William Hague argued “those responsible for ‘atrocities’ must be held to account.”[59]
Along with the idea that the ICC’s role is to punish injustice, the ICC is also viewed as an institution that is a “moral force of human rights”.[60] Presumably, punishing injustice is not simply to satiate retributive impulses, but to deter actors from committing human rights violations in the future. It would be convenient and easy if aims of ending impunity and promoting human rights were in harmony, but the arrest warrants against Gaddafi did not lead to an improvement in human rights for Libyans.
To recapitulate: when we look at the ICC’s involvement in Libya, we see three broad justifications. First, the ICC’s involvement was supported on the grounds of removing Gaddafi from power. This aim was achieved. Second, and relatedly, the ICC’s involvement was supported on the grounds of protecting Libyans. This aim was not achieved: as established, Libya has become a failed state with violence persisting and slavery flourishing. Third, the ICC’s involvement was supported on the grounds that Gaddafi could not get away with crimes against humanity and therefore ought to be punished. It is debatable as to whether this aim was achieved. In a way, Gaddafi was punished. But he was not punished through an international criminal legal institution; at least not directly.
One may then ask whether all three of these aims are jointly compatible. This was grappled with by international actors who questioned whether the ICC intervention would help or hinder peace.[61] For instance, some critics of the ICC’s intervention claimed that it gave Gaddafi incentive to fight to the death and would therefore not be conducive to peace.[62]
This may bring about a more existential debate about the role of the ICC. Is its primary aim to punish injustice, or is it to protect human rights? Rather than focus on the “justice vs. peace” debate described by Kersten in the context of these interventions, I instead argue that if a primary aim of the ICC is to protect civilians from crimes against humanity, Libya has shown us how this aim can actively be in tension with the aim of justice and ending impunity. I will therefore assume for the sake of argument that the ICC’s prosecution of crimes against humanity has in mind a significant regard for the protection of human rights in doing so, but that this aim was not achieved.
III. Applying international criminal law
The Rome Statute of the ICC defines crimes against humanity in Article 7(1) and dictates that the acts listed are such crimes when they are committed as part of a “widespread or systematic attack directed against any civilian population with knowledge of the attack.”[63] Recall that Gaddafi was accused of murder, contrary to Article 7(1)(a) of the Rome Statute, and persecution, contrary to Article 7(1)(h) of the Rome Statute.
Crimes against humanity have three elements: a physical element, a contextual element: attacks are widespread or systemic and targeted at a civilian population, and a mental element: there must be knowledge of the attack.[64] Article 7(2)(a) of the Rome Statute states that crimes against humanity must be committed “pursuant to or in furtherance of a state or organizational policy to commit such attack.”[65]
Rather than litigate whether Gaddafi – who can no longer be tried – is responsible for the crimes he was charged with, I wish to investigate the culpability of those who wished to prosecute him. It is the case, I argue, that groups other than Gaddafi –the rebels, NATO, the US, the UK, France, and the ICC – are responsible for the commission of five crimes against humanity: murder, extermination, enslavement, torture, and persecution.
As stated above, NATO and its allies committed airstrikes that killed civilians and journalists, satisfying the requirement of murder.[66] This can constitute a widespread attack, which pertains to an attack against a civilian population over a broad geographical area.[67] It was explicitly admitted by Hillary Clinton’s policy planning director that there was no attempt to protect civilians on Gaddafi’s “side” in the midst of an extremely high volume of airstrikes per day during the intervention.[68] As such, NATO and its allies did not protect civilians from murder but recklessly contributed to their deaths. Note that with respect to causality in criminal law, a perpetrator is responsible for the consequences of their actions even if they did not intend to bring each consequence about if they were reasonably aware that it would occur in the ordinary course of events.[69] If a sophisticated military power is attacking a densely populated civilian area without attempting to protect civilians, they could have reasonably anticipated the result.
Article 7(1)(b) of the Rome Statute lists extermination as a crime against humanity.[70] Extermination is defined in Article 7(2)(b) to include “intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.[71] In Tawergha, rebel militias terrorized and drove out 30,000 residents after allegedly shooting unarmed Tawerghans, arbitrarily arresting them, beating them, and killing them.[72] Because these crimes were targeted at Tawerghans for allegedly being “Gaddafi loyalists,” this is arguably a crime of forcible transfer (contrary to Article 7(1)(d) of the Rome Statute) and collective punishment under Article 7(1)(h) of the Rome Statute (persecution).
Persecution is defined in Article 7(2)(g) as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”[73] In general, Black Libyans can be said to have suffered persecution at the hands of rebel militias as discussed in section I.I.[74] Black migrants that have gone through Libya have additionally suffered enslavement,[75] defined in Article 7(2)(c) to include exercising ownership over people and trafficking them.[76] As previously noted, this slave trade proliferated after Gaddafi’s demise and continues to this day.[77]
Were these crimes organizational policies? To be sure, it is not as easy or clear-cut as accusing a head of state to classify a policy of displacement, slavery, murder, and so forth. But the UN has clarified that “policy” does not need to infer to an explicit or formal decree and can be “inferred from the totality of the circumstances.”[78] With rebel groups having Black Libyans as clear targets, and western powers committing a large volume of airstrikes without regard for civilian populations, it is plausible that these crimes are committed as part of a policy to remove Gaddafi from power at all costs.[79] The next question is where the ICC fits in.
III.I. Standards of criminal responsibility and the ICC
The ICC imposes a standard of criminal culpability that is not unlike that of Canadian criminal law. That is, if one joins a group, they become responsible for the crimes committed by that group even if they are not a principal.
Article 25(3) of the Rome Statute deals with co-perpetration and criminal responsibility.[80] Sections (c) and (d) of this Article deals with accessory liability. Article 25(3)(c) dictates that one is criminally responsible if they aid, abet, or otherwise assist in a crime’s commission. Article 25(3)(d) holds that one is criminally responsible for a crime if they in “any other way” contribute to a group with a common purpose committing it or attempting to commit it. This must be intentional and either (i) with the aim of “furthering the criminal activity or criminal purpose of the group” or (ii) “be made in the knowledge of the intention of the group to commit the crime.”[81]
These are standards the ICC imposes on those that are to potentially stand before them. They should also be applied to the ICC itself. Clearly, the ICC did not have an express intention to give their blessing to the acts of rebel violence against Black Libyans. However, they were still able to recognize that rebel groups were violent and destructive when deciding to prosecute Gaddafi.[82] It was also more than apparent to the international community that the rebels had disturbing anti-Black aspirations.[83] Further, as Kersten argues, having the knowledge of violence on both sides but aiming at only one side of the conflict is a dangerous move: it creates a risk that the court will shape the narrative of the conflict in favour of one side (namely, the one not indicted).[84]
Kersten makes the additional point that the Court taking a single side, despite knowledge of violence of violence on both sides, can embolden the non-targeted side by inspiring their re-commitment to violence. If one side is portrayed as more irredeemably evil – with the normative force of the law behind it – the group against them may feel right in believing that they cannot “negotiate with evil” and must maintain violent tactics.[85]
Additionally, some have suggested that regime change was not truly on the table until the UNSC referred the case to the ICC because protests against Gaddafi were not initially about removing him from power.[86] Kersten argues that the subsequent regime change demands made protestors’ initial grievances irrelevant, and the new solution was simply about getting rid of Gaddafi. This contributed to the narrative that Gaddafi was evil, ignored the support he had previously had, and made it easier for NATO to justify its actions.[87] Notably, NATO and Western states were particularly supportive of the Court’s role in Libya, and their media had taken up the “good vs. evil” narrative to justify intervention.[88] The airstrikes by western powers, and the arming of violent rebels, were able to be underplayed or justified once the primary problem was seen to be Gaddafi. As Gaddafi became more interested in negotiating, and as others suggested that what happens to him should be up to Libyans, the ICC continued to insist that Gaddafi must be arrested.[89] Kersten further points out that this made the rebels’ demand for regime change “more feasible and defensible” and galvanized oppositional groups.[90]
None of this is to say that the ICC itself ruined the chance of negotiations or peace, but rather that the legal legitimacy it offered to rebel groups by placing blame for violence on one side of the conflict bolstered their resolve.[91] This makes their primary effect, Kersten says, to be reinforcing a “good versus evil” narrative and justify the goal of regime change.[92] Indeed, the creation of a single “villain” in a complex international conflict makes it easier to justify reckless warfare and sanctions, which has been the case in interventions against places like Iraq and Syria.[93] The goal of regime change in Libya arguably overtook any initial goal NATO and western powers had to protect Libyan civilians, and was assisted by this simplified and one-sided portrayal.[94] In turn, Libya was able to quickly dissolve into chaos and became a ground ripe for the crimes against humanity we continue to see today.
The ICC often relies on retributive justifications: it does not matter if the other side did bad things, because people want to see Gaddafi punished. However, from a responsibility perspective, it is responsible for all consequences it brings about, and bears causal responsibility for crimes against humanity in Libya. By acknowledging the violence of anti-Gaddafi forces but choosing to prosecute only the other side, the ICC provided a narrative that those resisting Gaddafi were legitimate and justified in whatever action they took to remove him. This is arguably a form of abetting. By taking a side in this conflict, the ICC effectively joined the perpetrators of the aforementioned crimes: the US, the UK, France, NATO, and rebel groups. They acted remarkably quickly given the fact that claims igniting calls for retribution (that Gaddafi had an army of mercenaries, that he was committing mass rape, that there would be a bloodbath akin to Rwanda) lacked evidence and/or did not come to fruition.[95] At best, if it does not amount to aiding and abetting, the ICC’s actions recklessly contributed to undermining human rights in Libya rather than promoting them.
Conclusion
By acting quickly on uncertain information, effectively joining one side of the conflict while failing to equally emphasize crimes on the other side of the conflict, the ICC assisted the rebels, NATO, the UK, the US, and France in the violence inflicted on Libyan civilians and African migrants. These actions were done, ostensibly, with the pursuit of justice in mind.
But clearly, the ICC cannot have its cake and eat it too. That is, there are circumstances such as Libya where they may not be able to simultaneously satiate the public’s thirst for justice while also preserving the human rights of civilians of the country that they are intervening in. Instead of ending impunity for those that commit crimes against humanity, the ICC has found itself implicated in the same type of crimes by galvanizing rebel forces and joining forces with NATO, the UK, the US, and France.
Standards of criminal responsibility that the ICC imposes on others should apply to the ICC itself. Perhaps they did not foresee all consequences of their intervention in Libya; it would be difficult to. However, we ought to reconsider to what extent the ICC has sacrificed human rights for the sake of pursuing justice; especially when such pursuits are done rapidly and recklessly. The international community, in pursuing justice, ought to take seriously what consequences this pursuit may bring about in complex political conflicts, and whether the pursuit of justice will align with putting an end to crimes against humanity.
[1] See e.g., Mirjan Damaska, “What is the point of international criminal justice?” (2008) 83 Chi- Kent L Rev 329 at 339.
[2] See David P. Forsythe, Human Rights in International Relations, 3rd ed (New York: Cambridge University Press, 2012) at 106.
[3] See e.g., Al Jazeera News, ICC, “ICC debate: Africa vs ‘Infamous Caucasian Court’?” (28 October 2016), online: Al Jazeera English <https://www.aljazeera.com/news/2016/10/28/icc-debate-africa-vs-infamous-caucasian-court/>.
[4] See e.g., Luis Eslava & Sundhya Pahuja, “Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law (2012) 45:2 Verfassung und Recht in Ubersee/Law & Pol in Africa, Asia, & Lat Am 195.
[5] See e.g., Antony Anghie, Imperialism, Sovereignty, and the Making of International Law, (New York: Cambridge University Press, 2014).
[6] See International Criminal Court, “Situations under investigation” (Accessed 18 December 2021), online: <https://www.icc-cpi.int/pages/situation.aspx>
[7] See ICC-02/04, “Uganda: Situation in Uganda,” (Accessed 18 December 2021), online: International Criminal Court <https://www.icc-cpi.int/uganda>.
[8] See Samantha Grossman, “‘Kony 2012’ Documentary Becomes Most Viral Video in History,” (12 March 2012), online: TIME <https://newsfeed.time.com/2012/03/12/kony-2012-documentary-becomes-most-viral-video-in-history/>.
[9] See Sang-Hyung Song, “The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law” (Accessed 18 December 2021), online: UN Chronicle <https://www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law>
[10] See e.g., Frédéric Mégret, “International Criminal Justice: A Critical Research Agenda,” in Christine Schwöbel, ed, Critical Approaches to International Criminal Law: An Introduction, 1st ed (London: Routledge, 2014) 17 at 42 [“Mégret”].
[11] See Mark Kersten, Justice in conflict: the effects of the International Criminal Court’s interventions on ending war and building peace (New York: Oxford University Press, 2016) at 117-118 [“Kersten”].
[12] Ibid., 120.
[13] Ibid., 124.
[14] See Joe Conason, “Seven countries in five years,” (12 October 2007), online: Salon <https://www.salon.com/2007/10/12/wesley_clark/>
[15] See News Wires, “Ten years after Gaddafi’s death, a Libyan town still yearns for his rule,” (20 October 2021), online: France 24 <https://www.france24.com/en/africa/20211020-ten-years-after-gaddafi-s-death-a-libyan-town-still-yearns-for-his-rule>
[16] See Aryn Baker, “’It Was As if We Weren’t Human.’ Inside the Modern Slave Trade Trapping African Migrants,” (14 March 2019), online: TIME <https://time.com/longform/african-slave-trade/>; Roxana Baspineiro, “Libya: Before and After Muammar Gaddafi,” (15 January 2020), online: teleSUR English <https://www.telesurenglish.net/analysis/Libya-Before-and-After-Muammar-Gaddafi-20200115-0011.html>.
[17] See Tim Gaynor & Taha Zargoun, “Gaddafi caught like a ‘rat’ in a drain, humiliated and shot,” (21 October 2011), online: Reuters < https://www.reuters.com/article/us-libya-gaddafi-finalhours-idUSTRE79K43S20111021>.
[18] See Ian Black and David Smith, “War crimes court issues Gaddafi arrest warrant” (27 June 2011), online: The Guardian <https://www.theguardian.com/world/2011/jun/27/muammar-gaddafi-arrest-warrant-hague>.
[19] See ICC-01/11, Libya. “Situation in Libya” (Accessed 18 December 2021), online: International Criminal Court <https://www.icc-cpi.int/Libya>.
[20] Ibid.
[21] See Office of the Prosecutor, “Eighth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011)” online (pdf): International Criminal Court <https://www.icc-cpi.int/iccdocs/otp/otp-report-UNSCR%201970-11-11-2014-Eng.pdf> at paras 26 & 30 [“Eighth Report”].
[22] Ibid at paras 2-3.
[23] Ibid at para 24.
[24] See Colin Moynihan, “Libya’s U.N. Diplomats Break With Qaddafi,” (21 February 2011), online: The New York Times <https://www.nytimes.com/2011/02/22/world/africa/22nations.html >.
[25] See Patrick Cockburn, “Amnesty questions claim that Gaddafi ordered rape as a weapon of war,” (24 June 2011), online: The Independent <https://www.independent.co.uk/news/world/africa/amnesty-questions-claim-that-gaddafi-ordered-rape-as-weapon-of-war-2302037.html>.
[26] See Kersten, supra note 11 at 116.
[27] See Mohammed Abbas, “Libya jets bomb rebels, French press for no-fly zone,” (13 March 2011), online: Reuters <https://www.reuters.com/article/topNews/idUSTRE7270JP20110314?i=1&irpc=932 >.
[28] See Maximilian Forte, “The War in Libya: Race, ‘Humanitarianism.’, and the Media,” (20 April 2011), online: MRonline <https://mronline.org/2011/04/20/the-war-in-libya-race-humanitarianism-and-the-media/>
[29] See e.g., Alan Kuperman, “False pretense for war in Libya?” (14 April 2011), online: The Boston Globe <http://archive.boston.com/bostonglobe/editorial_opinion/oped/articles/2011/04/14/false_pretense_for_war_in_libya/>.
[30] See Max du Plessis & Christopher Gevers, “UNSC Referral of Libya Gives ICC the Opportunity to Prove its Worth,” (4 March 2011), online: Institute for Security Studies <https://issafrica.org/iss-today/unsc-referral-of-libya-gives-icc-the-opportunity-to-prove-its-worth>.
[31] Ibid.
[32] See Kersten, supra note 11 at 15.
[33] See James Risen, Mark Mazzetti, and Michael S. Schmidt, “U.S.-Approved Arms for Libya Rebels Fell Into Jihadis’ Hands,” (5 December 2012), online: The New York Times <https://www.nytimes.com/2012/12/06/world/africa/weapons-sent-to-libyan-rebels-with-us-approval-fell-into-islamist-hands.html>.
[34] See Le Figaro, “Libya conflict: France air-dropped arms to rebels,” (29 June 2011), online: BBC News <https://www.bbc.com/news/world-africa-13955751>; The Associated Press, “U.K. supplies body armour to Libyan rebels,” (30 June 2011), online: CBC News <https://www.cbc.ca/news/world/u-k-supplies-body-armour-to-libyan-rebels-1.1082455>.
[35] See BBC News, “Nato rejects Gaddafi’s offer of ceasefire and talks,” (30 April 2011), online: BBC News <https://www.bbc.com/news/av/world-middle-east-13249333>.
[36] See Joe Dyke, “NATO Killed Civilians in Libya. It’s Time to Admit It,” (20 March 2021), online: Foreign Policy <https://foreignpolicy.com/2021/03/20/nato-killed-civilians-in-libya-its-time-to-admit-it/> [“Dyke”].
[37] See Richard Norton-Taylor and Dominic Rushe, “Assault on Tripoli ‘planned weeks ago’,” (25 August 2011), online: The Guardian <https://www.theguardian.com/world/2011/aug/25/libya-rebel-backers-free-funds>.
[38] See e.g., Tim Gaynor & Taha Zargoun, “Gaddafi’s death – who pulled the trigger?” (20 October 2011), online: Reuters <https://www.reuters.com/article/us-libya-gaddafi-finalhours-idUSTRE79J5Q720111020>.
[39] See C.J. Chivers and Eric Schmitt, “In Strikes on Libya by NATO, an Unspoken Civilian Toll,” (17 December 2011), online: New York Times <https://www.nytimes.com/2011/12/18/world/africa/scores-of-unintended-casualties-in-nato-war-in-libya.html>.
[40] See Kareem Fahin and David Kirkpatrick, “Airstrikes Clear Way for Libyan Rebels’ First Major Advance,” (26 March 2011), online: The New York Times <https://www.nytimes.com/2011/03/27/world/africa/27libya.html>.
[41] See David Kirpatrick, “NATO Strikes at Libyan State TV,” (30 July 2011), online: <https://www.nytimes.com/2011/07/31/world/africa/31tripoli.html>.
[42] See Protection of civilians in armed conflict SC Res 1738, SC, 2006, UN Doc S/RES/1738 (2006).
[43] See CNN Wire Staff, “Brother of Libya’s information minister reported killed in NATO strike,” (19 August 2011), online: CNN <http://edition.cnn.com/2011/WORLD/africa/08/18/libya.war/>.
[44] See e.g., Leela Jacinto, “Shifting loyalties among Libya’s Islamists,” (8 May 2011), online: France24 <https://www.france24.com/en/20110805-libya-uprising-islamists-rebels-ntc-gaddafi-fighters-transition-council-shifting-allies>.
[45] See David Enders, “Empty village raises concerns about fate of black Libyans,” (20 September 2011) online: Miami Herald <https://www.miamiherald.com/latest-news/article1938670.html>; “African Migrants Caught in Brutal Libyan Limbo,” (14 December 2011), online: NPR <https://www.npr.org/2011/12/14/143668904/african-migrants-caught-in-brutal-libyan-limbo>.
[46] See Patrick Cockburn, “Rebels wreak revenge on dictator’s men,” (28 August 2011), online: The Independent <https://www.independent.co.uk/news/world/africa/rebels-wreak-revenge-on-dictator-s-men-2345261.html> [“Cockburn”].
[47] See Casey Quackenbush, “The Libyan Slave Trade Has Shocked the World. Here’s What You Should Know,” (1 December 2017), online: TIME <https://time.com/5042560/libya-slave-trade/> [“Quackenbush”]; Sally Hayden, “Inside the smuggler’s warehouse: Africa’s 21st-century slave trade,” (11 April 2020), online: The Irish Times <https://www.irishtimes.com/news/world/africa/inside-the-smuggler-s-warehouse-africa-s-21st-century-slave-trade-1.4224073> [“Hayden”].
[48] See AFP, “ICC wants to investigate human trafficking in Libya,” (9 May 2017), online: Middle East Eye édition française <https://www.middleeasteye.net/fr/news/icc-wants-investigate-human-trafficking-libya-463114073>
[49] See Kersten, supra note 11 at 8.
[50] Ibid at 129-130.
[51] See BBC News, “Libya: Muammar Gaddafi subject to ICC arrest warrant,” (27 June 2011), online: BBC <https://www.bbc.com/news/world-africa-13927208> [“BBC(a)”].
[52] See Mégret, supra note 10 at 42-43
[53] See Robert Sloane, “The Expressive Capacity of International Punishment” (2007) 43:1 Stan J Int’l L 39 at 81.
[54] Ibid. at 81-82.
[55] See Alexander Greenwalt, “International Criminal Law for Retributivists” (2014) 35:4 U Pa J Int’l L 969 at 976.
[56] Ibid. at 1025.
[57] Ibid at 1030.
[58] See Human Rights Watch, “Libya: Q & A on the Arrest Warrants for Gaddafi, Cohorts,” (27 June 2011), online: Human Rights Watch <https://www.hrw.org/news/2011/06/27/libya-q-arrest-warrants-gaddafi-cohorts#q1>.
[59] See BBC(a), supra note 58.
[60] See Kamari Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (New York: Cambridge University Press, 2009) at 46.
[61] See Kersten, supra note 11 at 115.
[62] Ibid at 117.
[63]Article 7, Rome Statute of the International Criminal Court, (last amended 2010), 17 July 1998 <https://www.refworld.org/docid/3ae6b3a84.html> at 3 [“Rome Statute”].
[64] See United Nations Office on Genocide Prevention and the Responsibility to Protect, “Crimes Against Humanity,” (Accessed December 2021), online: UN.org <https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml>. [“UN Genocide Prevention”].
[65] Ibid., Article 7(2)(a) at 4.
[66] See Dyke, supra note 36.
[67] See UN Genocide Prevention, supra note 64.
[68] See Jo Becker and Scott Shane, “Hillary Clinton, ‘Smart Power’ and a Dictator’s Fall,” (27 February 2016), online: The New York Times <https://www.nytimes.com/2016/02/28/us/politics/hillary-clinton-libya.html>.
[69] See Article 30(2)(b) & Article 30(3), Rome Statute, supra note 63 at 16.
[70] Ibid., Article 7(1)(b) at 3.
[71] Ibid, Article 7(2)(b) at 4.
[72] See Sidney Kwiram, “Libya: Militias Terrorizing Residents of ‘Loyalist’ Town,” (30 October 2011), online: Human Rights Watch <https://www.hrw.org/news/2011/10/30/libya-militias-terrorizing-residents-loyalist-town>
[73] See Article 7(2)(g), Rome Statute, supra note 63 at 4.
[74] See Cockburn, supra note 46.
[75] See Quackenbush, supra note 47.
[76] See Article 7(2)(c), Rome Statute, supra note 63 at 4.
[77] See Hayden, supra note 47.
[78] See UN Genocide Prevention, supra note 64.
[79] See e.g., PBS, “Obama Says All Options Are on Table for Libya Response,” (23 February 2011), online: PBS News Hour <https://www.pbs.org/newshour/show/obama-says-all-options-are-on-table-for-libya-response>.
[80] See Article 25(3), Rome Statute, supra note 63 at 18.
[81] Ibid. at 19.
[82] See e.g., Eighth Report, supra note 21.
[83] See Gregory Shupak, “How NATO Set the Stage for Open-Air Slave Markets in Libya,” (5 December 2017), online: AlterNet. <https://www.alternet.org/amp/nato-backed-anti-black-rebels-libya-slave-markets-2647326545>.
[84] See Kersten, supra note 11 at 46.
[85] Ibid.
[86] Ibid. at 120.
[87] Ibid. at 121.
[88] Ibid. at 123-124.
[89] Ibid. at 128.
[90] Ibid. at 131.
[91] Ibid. at 135.
[92] Ibid. at 143.
[93] See Mila Ghorayeb, “Don’t Depict Putin, Kim, Assad, and Others as Cartoon Villains,” (14 December 2021), online: Passage <https://readpassage.com/dont-depict-putin-kim-assad-and-others-as-cartoon-villains/>.
[94] See Matthew Green, “To What Extent Was the NATO Intervention in Libya a Humanitarian Intervention,” (6 February 2019), online: E-International Relations <https://www.e-ir.info/2019/02/06/to-what-extent-was-the-nato-intervention-in-libya-a-humanitarian-intervention/>
[95] See notes 26, 28-29.