The Libyan Case under International Law

Classical public international law recognized only sovereign, independent states as subjects of international law. As a result of the development of modern international society, international commercial activities engaged the attention of sovereign states, whose big multinational s have been constrained to do business with sovereign, independent states.

This gave rise to the emergence of private international law, which regulates contentious issues between states and their international corporate trading partners.
Much later, as a result of the development of human rights law and humanitarian law, the concept of international criminal law became manifest.
It has remained an inchoate legal order. From its operations so far, it appears that the fears of many states, which have refused to sign or ratify the Rome Treaty have been justified.

The United States of America, which has one of the best legal experts and a robust judicial system, has refused to ratify the Treaty of Rome, probably because of its inchoate nature.
Addressing international students of the famous University of Michigan Law School at Ann Arbor, USA, in 19 91, in a lecture entitled, “Equity Jurisdiction in Nigeria,” I had argued that the proposed International Criminal Court, could be selective in the category of persons to be prosecuted.

It would not have universal appeal since the worlds’ powers-that-be cannot submit their sovereigns, military generals and top politicians to the frenzied ridicule of the scandal-loving reporters during ignominious and humiliating trials by prosecutors of the ICC.
I also argued that the lengthy trials would only have theatrical effects, since strong and convincing evidence would have evaporated as a result of the time factor.

It was also my contention that the appointment of prosecutors from the Euro-American and Latin American juridical systems would subject leaders from Africa, Asia and the Arab world to an alien jurisprudence and legal reasoning unknown to them.
Finally. I predicted that the Court could become an instrument of power politics. It can be recalled that since the Court started to sit, it has indicted, not all those leaders, who had committed crimes against humanity but political leaders, who were not liked by the “International Community’.

In the concrete case of Libya, there are very obvious international legal issues and problems to be passionately and objectively discussed.
In international law, a recognized State, a Head of State remain recognized until another political group replaces the Head of State.
Death could also bring his recognition to an end. A successful military coup can also cause a Head of State to be displaced. These are all of internal or municipal consequences.

An eternally engineered attack violates the territorial integrity and political independence of a state and legally violates Article 2(4) of the United Nations Charter.

Where the United Nations Security Council has decreed the procedure for the resolution of an international conflict or has suggested the method of resolving the ugly face of a civil war, no generals or Heads of State can change the UN Resolutions. Anything to the contrary, will be dismally contemptuous of the United Nations and International Law.

There are rules of international law, which regulate warfare and which have been seriously violated by combatants during the Battle of Libya. It is the duty of a senior military officer to ensure that the Geneva Conventions on warfare are scrupulously respected.
Since the above reasoning is impeccable and can be defended with gusto, it logically follows that the statement credited to General David Richards is convicted of error. A humanist should appreciate that setting Libya on fire and bombing the capital of a state, where diplomats and their families live can escalate the conflict if the families of diplomats from other powerful states reside in such places.
This can happen.

General David Richards, in all his brilliant military campaigns has no magical conjurations that instruct bombs to fall exactly in commanded locations. It is yet to be seen how the destruction of Libya’s infrastructure will benefit the “new government,” which would be constrained to conduct its diplomatic and political affairs under broken down offices.

The new “government” cannot borrow money for reconstruction from Euro-American states that are struggling with their finances.
It is remarkable that history is repeating it’s self with bells on. Perhaps, General David Richards will recall that when crazy Adolf Hitler unleashed the BATTLE OF BRITAIN, Winston Churchill had to repeatedly call on President Roosevelt to save Britain. The United States eventually entered the war and Britain was rescued from Hitlerism push.

It has been reported that Libyan diplomats have visited Moscow, in Churchillian mercy visit to America to request that the US come to Britain’s aid.
Well, the Russians, who just have received the President of Pakistan and the Libyan delegation, seem to be expanding their influence, without making it obvious.

John Kerry must have been embarrassed as Pakistani discontent against America grows. The American influence in the Arab world has shrunk inexorably.
Libyan rebels seek US endorsement. The US may have to adhere to the cardinal principles of not recognizing rebel/combatants, whose “government” could fizzle out with time. This was why Britain, the US and other states that adhere to the principles of jus cogens in international did not recognize the failed Republic of Biafra.

It is a cardinal principle of Roman law, which has been accepted world-wide that “Pacta tertiis nec nocent nec prossunt sunt”.This means that a treaty does not apply to a state, which is not a signatory.
The Libyan state is not a signatory to the Treaty of Rome.The ICC prosecutor has a herculean task of imposing jurisdictional authority on a Court, in which the highly learned judges do not share the political prejudices of vote-seeking politicians and other legal underachievers, who are being goaded by high contracting parties in the Libyan enterprise.

Scholars of the Austrian-German-Dutch international law school, to which I proudly belong, must be worried about the debasement of the role of international law in the last ten years, a period characterized by wars, power geo-politics and hard attitudes.
An International Criminal Court of some sorts has been seen as an instrument of taming leaders from the Third World, whose folly and ignominy have been on the same level with the brutalities of leaders from other climes.

The Prosecutor, Mr. Ocampo, inaudibly murmured some badly formulated charges, which raised eye- brows. How do you prosecute a Head of State and his son and the Head of Espionage, in the middle of a civil war, relying on evidence of roaming nomads and other witnesses, whose signature cannot be obtained and cannot be available for cross- examination and re-examination?

There should have been a properly constituted Commission of Inquiry to document atrocities of both sides. Since when has international law recognized rebels? Since when has the international criminal court approved the rule of evidence, which is the heart of judicial proceedings?
The hurried eagerness to summon Col. Gaddafi and others to The Hague may be detrimental to the excavation of more evidence, which could have assisted the international community to determine the extent of mutual assured destruction in Libya and the role of meddlesome interlopers.
Members of the Curatorium of BOSAS International Law Bureau, meeting at THE NEW COVENANT HOUSE, Fugar, Edo State, unanimously agreed that Murmar Gaddafi had overstayed his welcome as the Libyan President. We find that it is wrong for Gaddafi to intend handing over power to his sons We hold that the Benghazi revolt was justified since there was no other legitimate way to assert their freedom in a

Republic that was totalitarian. However, a call for a referendum, an appeal to the United Nations Organization asking for self- determination, would have been more appropriate. If that had happened, the Benghazi freedom fighters, could have received more support from UN members=states.

The ICC’s prosecutor knows that “crimes against humanity ‘and “war crimes” must be clarified meticulously in order to be acceptable as such.
The prosecutors’ charges are full of ambiguities and inconsistencies.
We demand unambiguously worded statements. I cannot grapple with the ambiguity of his indictments and I hope the trial judges will!
For example, to state that Libyan security forces conducted widespread and systematic attacks against civilian population, needs to be buttressed by facts and evidence. The proceedings in court will be assailed by definitional, prepositional and exactitude requirements.
Who are the Libyan authorities, who are being requested or directed to arrest Libyan officials? Dealing with the Libyan Ambassador in Belgium is de jure recognition of the Libyan regime.

The UN Prosecutor deposed that his investigations started on February 15, 2011 and that by May 16, 2011, he has enough to go ahead with his case against Libya, in a civil strife that has recently intensified and in which disasters may still happen.
In a counter move, Libya has complained to the Human Rights Commission that NATO has killed Libyan civilians, is determined to effect regime change and has contemplated the assassination of Col. Gaddafi.

The Libyan Government said that it can prove these allegations beyond all reasonable doubt
Everywhere you turn; this Libyan case under international law is warped in an enigma. We are worried that the learned Prosecutor, Mr. Ocampo could stampede himself or allow himself to be stampeded into losing a case , which, if well-researched, would allow the Justices of the International Criminal Court to return a verdict based on the high juridical culture evinced in cases where the issues of human rights and humanitarian concerns are in great danger.

Anyone with a juristic frame of mind will have difficulties sorting out political prejudices from juristic processes. There are many political and juridical mine-fields, which the learned judges of the ICC have to wade through before arriving at a convincing decision. These mine- fields contain elements that border on the political offence doctrine, hatred, punitive accusations, both real and imagined war crimes and crimes against humanity on both sides. Are heinous crimes the same as war crimes and crimes against humanity on the scale of German’s war against humanity?
The situations in Bahrain, Tunisia, Syria, Egypt and Yemen, should also be examined by the ICC. Otherwise, those who accuse the ICC Prosecutor of selective treatment of war crimes and crimes against humanity in Libya may be right.

In this case, who are the complainants? If the rebels are the complainants, is the ICC Prosecutor their advocate too? Can the ICC Prosecutor adhere to due process in this highly contentious imbroglio? Our scholars at BOSAS International Law Bureau, Fugar, Edo State Nigeria have said that Muamar Ghaddafi may be subjected to a fair trial under due process.

BOSAS International Law Bureau, Fugar, Edo State, Nigeria, congratulates the ICC for successfully prosecuting the Rwandan genocide perpetrators.
In the Libyan case, we hope that no judicial officer turns out to be a pawn in the game.
International wars, civil wars, tribal wars, mini-wars in homes are the products of hatred, which is eminently and usually orchestrated by the devil in order to push for the destruction of the Sons and Daughters, as well as the children of God.
I watched Queen Elizabeth’s visit of reconciliation to the Re Republic of Ireland. Why must leaders driven by euphoria fight meaningless wars, with their attendant destruction only to apologise years after.

Let us embrace peace and not allow the devil to
move into the inner recesses of our souls to stir up hatred that leads to contentious engagements. We must eliminate hegemonic pursuits, superiority complexes, inferiority complexes, racial discrimination, state arrogance, holier-than-thou attitudes, hatred and murderous acts.

Written by
Emmanuel Omoh Esiemokhai
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