Creating precedents

The Gaddafi indictment is arbitrary, political and counterproductive

By Daniel Hannan

International law has ceased to be international. Where it used to be about relations among states, it is nowadays about human rights violations within states – which suits its practitioners down to the ground, as it gives them virtually unlimited jurisdiction.

For hundreds of years, we operated on the basis of the clearly understood principle that crimes were the responsibility of the states on whose territories they were alleged to have taken place. International law applied only to those issues which were, by their nature, international. William Blackstone saw it as covering just three areas: safe conduct passes; the treatment of ambassadors; and piracy on the high seas.

Under this traditional definition, Muammar Gaddafi might have been arraigned at virtually any point in the 1980s or 1990s. He practised the modern equivalent of piracy, sponsoring international terrorism. He disregarded the rules of international diplomacy, protecting the official who had murdered a British policewoman by firing at her from the Libyan embassy. He abused the notion of a safe conduct pass to remove that official from Britain.

At no stage did international judges issue a warrant for his arrest. Neither the Yvonne Fletcher murder, nor the revelation that Gaddafi had armed the IRA, nor even the Lockerbie atrocity prompted an arraignment. Now, though, the International Criminal Court has indicted the deranged colonel, not for his many violations of national sovereignty and diplomatic conventions, not for his global depredations, but for internal repression. His attacks on Libyan civilians, they say, constitute murder.

If so, then he should be tried in Libya. It is curious enough to see judges at The Hague presuming to overturn the legal system of an independent nation. But to see them doing so while ignoring the violations which actually fall under the normal definition of international law is alarming.

You might feel that I am nitpicking. Gaddafi is plainly a very bad man, so does it much matter how he is brought to justice? Isn’t it more important that he get his deserts morally than legally?

No, it isn’t. The objection to Gaddafi is precisely that he is a tyrant, that he rules arbitrarily, that Libyan courts are instruments of his regime. When we engage in political prosecutions of this kind, we drag ourselves down to his level. For this is, by any definition, a political prosecution. What has changed in the past couple of months is not that Gaddafi became nastier, but that the international community, frustrated by its ability to remove him, decided to “send a message”.

We should hold ourselves to a higher standard.