The International Criminal Court (ICC) has asked all countries for the imprisonment of Muamar Kadhafi, accusing him of crimes against humanity. With all due respect, either the Court should alter its procedural rules or its prestige will keep suffering consecutive and undeserved disturbances. The first time such a thing happened was when the Court issued a (still unfulfilled) warrant of arrest against Sudan´s President, Omar Bashir, who is still, until this date, freely travelling around every country he chooses without being bothered at all – in fact, he has just been welcomed with all honors by the Chinese President on June 28, 2011. The same thing might very well happen with Kadhafi.
But where is, as far as I understand, the fragile point of the current procedural system of the International Criminal Court? It rests in the possibility – an obligation even, as better detailed ahead – of arresting chiefs of state without a previous trial. In other words, first the Court arrests and only afterwards it tries the accused. This goes in opposition to the general legal tendency, which tries to prevent long imprisonments before the accused has a proper trial. If the accused is an older person and dies in prison before proven guilty – which is not unlikely, considering trials can last many years due to a great number of witnesses, exhaustively detailed defenses and so forth – his political followers (who are always there, somewhere) might very well say, whether it is the truth or not, that the deceased was just a martyr, a victim of a judicial system stained by political bias.
In Brazil, for example, dominant legislation and jurisprudence (both of which are in clear need of some changes for being too soft) determine that the accused is only considered guilty of a crime when the sentence is no longer subject to an appeal – only then he can be properly arrested. A preventive arrest is only tolerated as a guarantee that a convicting sentence will be fulfilled when the accused has neither a proper residence nor the means to live, or when there is serious evidence (?!) that he might escape once he is aware of his conviction. Even the most severe Brazilian jurists – who are very concerned about white collar crimes – suggest the lawmakers that a convict should only be put under arrest during the trials which are ulterior to a first or second sentence. One or two properly examined convicting sentences are on their own a strong evidence that the accused is indeed guilty. As for the ICC in the cases of Bashir and Kadhafi, it is requiring the arrest of chiefs of state without any previous conviction.
Article 63 of the Rome Statute determines that “1 - The accused must be present during his trial”. In there lies the explanation for the inconvenient paralysation of the most important lawsuits, stimulating a global aura of inefficiency in a Court which is very necessary to lessen the impunity of powerful criminals who have not been properly punished in their own nations. This good purpose – i.e., to punish those who deserve to be punished – needs to be adapted to the reality.
And which reality is that? The reality in which chiefs of state who are involved in bloody battles – by either killing or defending themselves abusively, or even both – will never voluntarily attend the International Criminal Court. And the ICC will find practical difficulty to arrest the accused because the country where he is – his own country or any other where he might be visiting — does not authorize the arrest, using the principle of sovereignty as an excuse. Even if the accused eventually feels compelled to attend, if only to improbably justify himself, he will never dare to put his freedom at risk. After all, he knows that in the Court there will be an entrance gate, but not an exit one. His victims, almost always individually unknown to him – will have already been heard. The Court will be influenced – if not vexed – since the beginning by the barbarian reports it will have heard, without which the process wouldn´t even have started. It is important to note that in this initial phase the accused´s witnesses are not heard (unless I am mistaken).
The instructing judge will almost certainly determine the arrest of the accused which has attended the trial either before or after its deposition, as a guarantee that he will be present at the final stage – the trial itself. At the latter, as already mentioned, he “must be present” (art. 63). Every chief of state in the position of “accused” will be under the (not always wrong) impression that behind all the legal framework there is a political interest – which there always in, in varied degrees. When the political or religious violence starts, brutal attacks from both sides are almost a certainty. In addition to that, not every barbaric act committed in vast and deflagrated regions derive from an order issued by the chief of state, whether he is a tyrant or not. Sadistic subordinates also enjoy any opportunity they have to give in to their tendencies.
As I have already mentioned in a previous article, Kadhafi is no model governor. He is a despot, and very far from being an enlightened one. And rumor has it that he has millions of dollars in some off-shore bank accounts - a probable burden to his country. The only thing that is left to know – in order to legally support or not the revolted people – is the level of spontaneous support which he has from the total population. It is even possible theoretically – theoretically – that he has more followers than enemies, and if such is the case, NATO would be legally wrong for not respecting the currently in force principle of sovereignty, a concept which, although agonizing — because it leads to manifest abuses —, still appears in the legal manuals as a rule to be respected.
To recap everything, it is necessary that the Rome Statute goes through modifications as follows: when subpoenaed — or its equivalent act — the accused shall be invited to attend. If such a thing doesn´t happen, the lawsuit against him shall move on until the end, with or without the declaration of preventive arrest, which would happen under the discretion of the Court. Even when absent, his lawyers would proceed with his defense. If the Court should want to hear his verbal explanations – to “attest” his sincerity – he might be interrogated from a distance, in front of a television or computer monitor. Nowadays there are plenty of technological devices easily available to study the “body language” of the person who is being interrogated, even thousands of kilometers away. Questions and answers might be followed live all over the planet, lending transparence to the process. Should the Court insist on having him physically present, it would have to give him an absolute guarantee that he would not be arrested should he agree to attend the deposition. However, it is very unlikely that the accused would believe such a promise.
Once the conviction is determined, only then a legitimate “hunt for the criminal” can start. Perhaps, in the future, even with the use of “commands”, something like what happened with Adolfo Eichmann, caught in Argentina by the Mossad. It would then be an arrest with much more global acceptance — after all, the ICC aims for global justice — because there would at least have been a public trial with all defense mechanisms available to the accused.
Such a new system would be much better that having a really important criminal case being stopped because the accused is absent – which is what happens nowadays. And we have to admit that the presence of the accused is not that important for the trial of a case. After all, most of the times the accused lies for his own benefit. Not to mention that his lawyers, who are more experienced than him, know better what is best to be revealed and what is best to be left unsaid.
There are certain procedural rigors which, as a paradox, for being too threatening, end up collaborating with impunity. Such is the case under analysis: since it is not possible to preventively arrest the powerful accused, the latter can brag about not being tried and enjoying a presumption of innocence.
I am unsure whether the aforementioned arguments ignore any legal or philosophical detail which would justify the current system, which, at the end of the day, involuntarily favors great criminals. Should there be any strong argument in favor of the current system, it is necessary for public and legal opinion to make it known. Even if it is to examine it and verify if it is based on common sense – this spice which should never be absent from the judicial activity. Especially in the international trials which have a political and/or religious component, where the notions of right and wrong are poisoned by pre-conceptions learned from childhood. Besides, the UN´s Security Council is not a temple for religious people whose only concern is to save souls. And that´s where the request to arrest the rude and arrogant Kadhafi stemmed from.
May the present article serve at least to provoke a reexamination of a procedural detail which is very important to the prestige and the well-functioning of a Court which was established with the best of intents.
(July 1st, 2011)
