The politics of law: Libya and the West

To begin with, please accept my sincerest apologies for the unprecedented hiatus last week. It was a hectic time and I appreciate the patience of the Pambazuka family in letting me have some breathing room to get through it.

Aside from that, it’s been an interesting week in international politics. A couple of weeks ago I wrote about the ICC (International Criminal Court) and generated some interesting conversations with people about the role of politics in international law – should African governments support an institution that is so overtly political in its decision-making process as to which cases get prosecuted and which do not? Even before that, I wrote about Muammar Gaddafi and how the West’s ill-advised foray into regime change in Libya would generate more trouble than they realised. This week it seems that both of these issues have come to a head, with the ICC issuing warrants of arrest for Muammar Gaddafi and his son Saif al-Gaddafi, primarily for charges of murder and execution, although there have been murmurs that charges for rape may also be on the table.

It doesn’t take a genius to deduce that this is not just a legal or procedural issue. What happened was that the West went looking for a war when it had no jurisdiction to fight one – even though the case could plausibly made that Gaddafi acted with excessive cruelty in responding to the uprising in Libya. Once the war was legitimised through the UN system, we now have a situation whereby the political fallout must also be managed to give a gloss or veneer of respectability to what was and continues to be an ill-conceived and -timed conflict. Pursuing a prosecution after the fact of the war only confirms that the intention is to use the ICC as a mop to clean up the mess in Mistrata rather than to actually pursue justice.

Whenever I get challenged on my complex position on international law, I always argue that the law is politics and politics is the law, because ultimately the law is about giving institutions the power to adjudicate over violations of various local, national or international standards. Law is by its very nature a political process, because the law represents the social and political consensus on those values that we hold most dear as a community. We legislate heavily against murder because we believe that no one should have the right to arbitrarily take the life of another, and because as a community we share a political or social value that all human life is valuable. In contrast, we have no laws against killing trees, or chickens or cows except in so far as they belong to other people, representing a consensus that some life is more valuable than others. In its most raw form therefore, international law represents those international conventions or mores that we as a global community hold most dear. We have instruments that protect against murder, arbitrary displacement, human smuggling, pillaging and other excesses of power because we believe these values should be above contestation.

There are many conversations that could be had around the question of how representative these instruments are of the actual people rather than the politicos that negotiate them, but beyond that recourse to an international legal instrument is always an inherently political decision, moderated by the extent to which we believe those values have been violated, to which we believe we have a responsibility to respond to those violations and, yes, to which the interests of various nations overlap. These considerations do not necessarily reduce from the efficacy of the notion of international law. They are merely a reflection of the reality of power in the modern system. It means that anyone who challenges the notion of an international law could either challenge the actual implementation of the legal framework or who we believe is responsible for responding to the violations or the manner in which we conceptualise power in the international system. I believe that you can’t fight all three battles at the same time, simply because you are either fighting one battle well or spreading yourself too thinly and fighting all battles poorly.

The case of Libya is a reminder that power matters, as does who wields it and why. If Europe and the US had no interest in Libya’s oil, or securing the Mediterranean against the refugee influx, there would likely be no warrant issued for the Gaddafis. However, it is also a reminder that when the people of Libya needed protection, African nations raising their voices were scarce on the ground, partly through a culture of silence that has opened up the door to impunity in the past, but also due to the current power dynamic in the international system where money buys you influence and African countries (say they) don’t have money. Until this power dynamic can be effectively challenged, it is in the interest of African nations to find a way of making existing systems work to their advantage, most importantly to work towards protecting African people.

There is no contradiction between wanting to build an international legal order that works for those that need the most protection and challenging the order of power in international politics. It’s simply a question of picking battles and keeping sight of the overall goal of the war, which in this case is making Africa safer for all Africans.

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