The Legacy of Crimes and Crises

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List of tables and graphs

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List of abbreviations

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Introduction

In 2011 protesters, outraged by the suicide of a petty trader in Tunis, took to the streets of Tunisia and ousted Zine al-Abidine Ben Ali, who had run the country as a dictator. The protests opened the doors to the first and so far only success of the Arab Spring. After the formation of several interim governments and a number of violent incidents and political assassinations, the country held successful and peaceful elections, approved a new constitution and elected a president. By then, it had already come under the pressure of various groups, which lobbied for contradicting requests and demands. There were victims’ organizations, which, as usual after a transition, demanded justice, understood as retribution against the perpetrators of past Human Rights abuses and compensation for themselves. There were groups urging for bringing to justice policemen, since the police were regarded as instrumental in carrying out the repressions against protesters prior to Zine al-Abidine Ben Ali’s escape to Saudi Arabia. But there were also groups that deplored the dire state of public security under the conditions of a disorganized, widely despised and disoriented police force. Political parties linked to the (mostly exiled) opposition against Ben Ali urged for the screening and vetting of public employees, in order to cut off elite bonds between the ancien regime and the new order.

Looking for closer ties with Western democracies, the Tunisian government was encouraged by the European Union to ratify the Rome Statute of the International Criminal Court (ICC) (which it has done) and thus to join the global “fight against impunity”, which, after the end of the cold war, had led to creation of the UN ad hoc tribunals and a number of internationalized jurisdictions, as well as the ICC itself. The calls for “punishing perpetrators” in Tunisia seemed to prevail, although the main culprit – Zine al-Abidine Ben Ali himself – was beyond their reach, because Saudi Arabia, never having ratified the Rome Statute, refused to extradite him. The further events of the Arab Spring raised doubts about the universal applicability of the fight against impunity and its potential consequences for a country like Tunisia.

In Libya, popular protests similar to the ones in Tunisia have not led to democratization, but to a cruel and protracted civil war, the intervention of foreign military forces (officially undertaken in order to protect civilians, but de facto with the aim of supporting the armed opposition against Muhammar Gaddafi and to overthrow him) and the division of the country among competing and fiercely fighting rival militias. At a relatively early stage of the conflict, the United Nation ← 13 | 14 → Security Council (UNSC) decided to refer the situation in Libya to the ICC, which in consequence issued arrest warrants for several members of the Libyan leadership, including Muhammar Gaddafi. Soon afterwards, United States (US) diplomats found out that by supporting the ICC referral, they had closed a back door to transition, which would have enabled Gaddafi and his entourage to escape and therefore facilitate a peaceful transition of power. After the ICC referral, Gaddafi was forced to fight to the bitter end. Common criticism among the Arab League and the African Union states towards Gaddafi’s policies that had been of primary importance for the foreign intervention authorized by UNSC resolution 1973 (2011) was paramount to the lack of asylum offers for the authoritarian Libyan leader. US attempts to find an acceptable shelter for Gaddafi failed, and, as we know, Gaddafi did decide to continue fighting, increasing the number of casualties, and devastating his country.1 None of the three Libyan nationals whose cases were referred to the ICC have been surrendered to The Hague.² In July 2015, a court in Tripoli ruled against thirty former members of the Gaddafi regime, nine of whom, including Saif Al Islam Gaddafi and Adbullah Al Senussi (with whose cases the ICC has dealt), were sentenced to death by firing squad.³