In his 1988 novel ‘Prisoners of Jebs’ the late Nigerian writer and political activist Ken Saro Wiwa set out with biting cynicism the vision of an artificial island created in front of the Lagos shoreline to accommodate all deposed African dictators. A journalist ventures to observe what is going on, is promptly apprehended by the community of ex-potentates, and put into a cage. From there he reports and comments on the extraordinary dynamics in a group of people whose instincts push them to be on top, but in this company find it hard to play by their usual rules. Picking on and criticising their peers may fall back on them. Jebs is a safe haven. All of its residents have a lot to answer for, but in their confinement they are only accountable to themselves, which is going nowhere.

The Libyan situation is complex, but at the heart of the question of intervention lies the quest for preventing the repetition of behavioural patterns in politics that allow governments and the individuals leading them to abuse human rights and deny citizens the right to change their government. Ensuring accountability for the gravest crimes set out in international criminal law is one of the prime tools that the international community has equipped itself with to reach this aim. And the International Criminal Court (ICC) is therefore rightly investigating in Libya.

At the same time direct action is taken by a UN mandated alliance to prevent the Libyan government (or what remains of it) to continue meting out violence against civilians. Clearly, many people and political leaders around the world would like Col Gaddafi to go, and there seems to be much local initiative to that effect too. In result a debate has started whether offering a ‘safe haven’ for Col Gaddafi is an option, and where it might be. Col Gaddafi having few friends, commentators argue that the choice is largely limited to a country that itself refuses to recognise the jurisdiction of the ICC (albeit all UN members states being under a duty to collaborate with the UN). One may add that some form of personal loyalty or kindred spirit of the rulers of the place will help too, as would tacit toleration of the agreement by the international community could ensure safe retirement, at least for now.

There is precedent for this kind of approach. Charles Taylor was allowed to go to Nigeria, Idi Amin sought refuge in Saudi Arabia, Mobutu in France and Morocco, the Sha in Egypt, Morocco, Mexico and Panama, and again Egypt. On a less grand level, Valentine Strasser, of Sierra Leone was allowed to go to the UK for studies, and the short term Guinean military coup leader Dadis Camara was hosted in Burkina Faso in a bid to prevent his return after the assassination attempt against him to lead to further instability. But there is also a trend to find a judicial end to the exile story, such as Taylor’s case shows, which should, rightly, make any dictator wary of taking up the international community on offers of a safe exile.

Beyond the question of facilitating political transitions, the issue is however whether the international community is not undermining its own progress towards the systematic use of international criminal law as a tool to reduce and prevent (not only punish) instances of abuse of power against citizens endowed with inalienable human rights, and aspirations to realise democratic rights of participation and change of government. Arguably, Gaddafi should face the very clear prospect that eventually he has no place to go except to The Hague, should the case of the prosecution be sufficiently firmed up. Even mid term plans for retirement in Burkina Faso, Khartoum, Harare or Equatorial Guinea should not be mooted as an acceptable solution by anyone, however attractive the thought of a ‘Jebs’ of some sort may be, simply to get rid of a problem.

The Middle Eastern and North African political world is in turmoil. Two governments have fallen in Tunisia and Egypt, three others in Libya, Bahrain and Yemen are to various degrees openly taking recourse to violence to stave off or manage change, in other countries such as Iran and Syria political repression is no less virulent but has not (yet?) led to major public stand offs. In a last group of countries such as Morocco and Jordan reforms are offered to halt a contagious wave of popular uprising and pressure for change political regimes that accept, and arguably can only work for the rulers, on the basis of the disenfranchisement of a larger part of the population and in particular young people.

As people are asking for democratic reform the autocratic and often pompous and self-serving nature of the governments in question is thrown into stark relief. Accountability and the idea of people having the right to change their government when they wish to is not a part of the set pieces of the governments in these states. At least, one may argue, the King of Bahrain describes himself openly as a monarch.  The absence of democracy in Libya, the State of the Masses, is harder to defend. Yet Col Gaddafi only uses the obfuscating nature of the Libyan constitution and his position within it to defend his grip on power, and is not intending to make any prisoners neither within Libya nor, according to his announcements, elsewhere in the Mediterranean.

The focus of international military action on Libya, and its absence in Yemen and Bahrain is of course the result of a very complex confluence of interests, and the more long term aims are discussed, the earlier the current coalition may split because of the need to take more principled and normatively driven decisions on all sides: in Europe and America along human rights and the Responsibility to Protect, and in the Arab world to protect their concepts of state sovereignty and defence against neo-colonialism.

To many countries in the Arab League, which through that forum currently endorse action against Col Gaddafi in Libya, an ultimate aim of installing more accountable and democratic governments in the subregion is not a comfortable prospect. Yet they do feel an increasing pressure of world and national opinion against them, should they not even support action against the public villain in their midst, when he seeks to smash his opponents with indiscriminate violence. Critically, his move is against the same type of ordinary men and women who are striving for a right to participation and access to opportunities of economic development that people in the other countries can identify with. It was them who came together in mass movements in Egypt and Tunisia and have prompted the downfall of governments.  Taking sides against Col Gaddafi is therefore, at least in the short term, currently more productive for the stability of many Middle Eastern governments than inaction.

Yet the fragility of the coalition put together against Col Gaddafi is evident. Not only are there differing viewpoints within the European / North American set of allies on the viability of the current limits set to action by the UN mandate or self-imposed political restrictions. The more important cracks are likely to appear around the questions of motivation for intervention. 

From a realist point of view, the focus on Libya for the West is entirely defendable: Libya is a significant provider of energy to the world oil market, a still indispensable part of the foreign policy calculus of industrialised countries. It is close to Europe and has a geopolitically important position on the east/western Mediterranean channel, and despite attempts to rope him in of late, many countries despise Col Gaddafi, and the risk of fundamentalist elements taking over is not seen as a major. By contrast, despite the strategic position of Yemen or the economic role of Bahrain, the future of a post Saleh government in Yemen or a collapse of the Bahrain government is unpleasant to contemplate for the West simply because of the unknown nature of it.

Yet while the decisions of Western governments may be driven, at least to a significant degree, by considerations of fossil energy security, their public discourse centres, like virtually all interventions under this or that variation of the doctrine of humanitarian intervention, on a concern about the citizens of Benghazi, and the prospects of success of a process of political change. Realism in politics clearly does not sell well, neither with domestic audiences in intervening countries, nor with Arab allies, and the Libyan opposition.

While the normative arguments for intervention may have been significant in cases such as Darfur, Guinea, Kyrgyzstan, Burma / Myanmar, and Sri Lanka (see the Global Center for the R2P for details), action there has been limited in most cases to bi- and multilateral diplomacy, peacekeeping and other work by the UN. To date direct military interventions by nation states (and mostly those affected by problems arising from disruptions of stable global energy supply), has mainly focused with or without UN blessing on countries where strategic energy interests were at stake or things were just a bit too close to home (such as in Bosnia).

It is important to understand the differences in each country situation, including prospects for success of interventions and their acceptance in the region. Yet despite the personal sincerity with which the case is made for intervention in Libya by those who believe in it, the overall humanitarian doctrine, which suggests that a government needs to treat the people living within the boundaries of the country with respect and has internationally defined human rights based duties towards them, may suffer if at the end of the day debate and decisions to intervene mainly appear to coincide with worries about oil supply.

Part of a solution could already be for parliaments to debate the challenge more widely than just focused on the country of prospective intervention. The question for a debate and vote is thus not only whether the governments of France, the UK the USA, Italy and their Arab allies are right to use air-borne force against Gaddafi’s Libya, but whether it is on balance with other situations and in the long term the right thing to do, and what arguments to use to defend such decisions. Having such a debate would at least create a forceful impression of legislators weighing up the goods and overseeing government decisions what tools to use to address an interconnected set of situations such as at present in the Middle East and North Africa. Accountability for difficult political decisions will be stronger the more open the discussions are, including a portion of realism about what drives decisions.

On US President Obama’s inauguration day in January 2010 a woman attending the ceremony was interviewed on what she expected of the new President and his Administration. “Everything”, she answered enthusiastically, and by when, please ? “Now!”.

Southern’ Sudan’s current vote on whether to separate from the rest of Sudan and become Africa’s and the world’s newest nation state appears at times to take place under similar expectations, which like in Obama’s case are bound to be deceived, not because the political leadership is not doing what it can, but because much of what is hoped for is unrealistic. Yet they are bound to be high and immediate for a new Southern Sudan, should it come into existence as this region of Sudan has arguably suffered more than many other countries and areas from war, poverty and neglect of duty by both the country’s leadership and also the international community.

During the last days of campaigning before the vote Sudan’s President Omal Al Bashir said that it would be a mistake for Southern Sudan to establish itself as an independent state, because its government would be in no position to provide for its people. That is a bit of a rich statement by a President who will possibly go down in history of one of Sudan’s most lethal leaders, standing accused of riding roughshod over Sudan’s citizens’ rights and needs and responsible for the deaths of tens of thousands of them – a man who does not care, and who, abusing arguments of national sovereignty, refuses to be accountable for his actions and that of the government over which he presides.

Yet, his remark highlights an important aspect of accountability of governments to citizens: delivery on needs and rights, including and importantly on economic, social and cultural rights. Yet while governments remain prime duty bearers for realising rights under international law, our understandings of obligations that arise from important norms such as human rights frameworks and more practical policy aims such as the Millennium Development Goals at global level needs to evolve. The Responsibility to Protect individuals and communities against widespread and systematic neglect of their rights, for structural reasons or based on specific political and policy decisions rests upon all of us and the global institutions we create.

On its own it is unlikely that Southern Sudan stands much chance of succeeding not only against its opponents in the northern Sudan, but also in the face of the legitimate expectations of its citizens for a tangible improvement. The day that Southern Sudan comes into an independent existence, should therefore be a day where also the international community understands that its responsibilities and duties towards people for the realisation of rights are not secondary but complementary to those of the state in which these citizens live.

Following an official announcement in mid October 2009 that the International Criminal Court (ICC) would examine the large scale killings and acts of sexual violence against women committed by members of the Guinean armed forces on 28 September 2009 in Conakry, the Minister of Foreign Affairs from Guinea promptly visited the Court to reassure it that Guinea could and would investigate and deal with any crimes committed. The ICC chose to form its own opinion. At the end of her February 2010 visit to Conakry ICC Deputy Prosecutor Fatou Bensouda concluded that in her view crimes against humanity are likely to have been committed, and that the ICCc  would remain on the case.  She remained however unclear whether any prosecutions would be taken forward by the ICC, but it is clear that the capacity and political will of Guinea to prosecute such crimes, and hold those responsible to account, is a central element in such a decision. Given Guinea’s state of governance and its consecutive governments’ track record of violating human rights points towards an ongoing involvement of the ICC in the case.

The positive side of the story as it unfolds is that the ICC begins more and more to live up to its mandate of investigating and prosecuting those most responsible for the gravest crimes under international law. Importantly, it is doing so now, towards the end of its first decade of existence, out of its own powers, acting “proprio motu”. This helps the Court to overcome accusations of just following cases referred to it, for, as some may claim, purely strategic reasons, by member countries or the Security Council, undermining both the legitimacy of the ICC and that of the UN Security Council. Particularly the referral of its first case ever, that of the leaders of the Lords Resistance Army (LRA) for crimes against people in Northern Uganda by the President of the country Yoweri Museveni, and that of Darfur (by the Security Council), have led to considerable alienation of some of the key stakeholders of the Court. Without the buy-in of African Heads of State and governments, the ICC may not be able to develop its deterrent, let alone its full judicial accountability potential.

On the problematic side, Guinea is again a case in Africa, like all other cases and situations currently publicly handled by the Court including the Office of the Prosecutor. As the Court itself states, the majority of all the 8000 + communications that have reached from individuals in 132 countries it are from United States of America, the United Kingdom, Germany, Russia and France. From a purely judicial perspective, the regional balance of cases treated should not matter. For the ICC to be accountable to the world (including but not limited to its member states) the crime itself should be at the centre of concern. Yet political considerations that impact on legitimacy show themselves to work in a different way, and the forthcoming Assembly of State Party Review Conference of the Rome Statute in May and June 2010 in Kampala may very well face calls for a greater, and not lesser political control over prosecutions, including in the context of a review of Article 124.

This would be a step into the wrong directions. Whether cases in Africa are the only ones that deserve investigating and prosecuting by the ICC is a moot point, yet if pursued it will lead to the ICC potentially becoming just another part of a intergovernmental system of institutions whose performance and ability to deliver against their mission is severely impaired by the political constraints under which they work, and from whose rules states can opt out when inconvenient.

While it is unlikely that the powers granted to the UN Security Council in Article 16 of the Rome Statute of the ICC to suspend investigations, prosecutions and trials will be diminished, the ICC’s legitimacy will eventually have to rely on its ability to demonstrate its accountability through the integrity of its own work, processes, the policies that support these and open evaluation of its performance against these. The Assembly of State Parties therefore has a special responsibility to protect the ICC against political interference and pick and choose approaches, while making sure that it is not only its judicial procedures which are exemplary, but also the frameworks that support it as a global governance institution that serves citizens and not political interests, whether defined in the global north or the global south.