For the second time in the history of the International Criminal Court (ICC), the Prosecutor is targeting an acting head of state. However, like Sudan’s al-Bashir, it is uncertain whether Gaddafi will actually be apprehended in the near future should arrest warrants be issued. More crucially, rather than promoting the stated objectives of international justice, issuing an arrest warrant on Libya’s leader may prove an obstacle to peace and stability in the region. The Libyan case raises important questions about the sequencing of transitional justice, but may also add fuel to the criticism that the Court is a politicized institution, which serves the interests of powerful countries in the west.
On May 16, ICC Prosecutor Luis Moreno-Ocampo requested Pre-Trial Chamber I of the ICC to issue arrest warrants on Muammar Gaddafi, his son Saif al-Islam, and his brother in law and chief of intelligence, Abdullah Senussi. The requests, which concern crimes against humanity as defined in article 7 of the Rome Statute, was made following a speedy investigation launched on the basis of a UN Security Council resolution of February 26. The three judges of the Pre-Trial Chamber are expected to act soon on the request made by the Prosecutor.
Arguably, the decision to involve the ICC in the ongoing conflict in Libya reflects a change in the international order where crucial actors, including UN bodies and some powerful states, are increasingly calling for justice tools to be applied to address serious human rights violations committed in ongoing conflicts or by authoritarian leaders still in power. In a sense this tendency – which is also evident from the ICC issuing arrest warrants on Lord’s Resistance Army leaders for crimes allegedly committed in the conflict in northern Uganda; arrest warrants on Sudanese leaders for crimes allegedly committed in the ongoing conflict in Darfur; and international pressure for truth, justice and victims’ redress in still conflict-affected Colombia – constitutes a new way of thinking about transitional justice. Until recently, issues of accountability for state-sponsored violence and crimes committed in times of armed conflict tended to be addressed following a transition, political or otherwise. In Latin America, for example, the horrors of the 1980’s military dictatorships were dealt with by means of criminal trials, truth-seeking and reparations only after the repressive leaders had stepped down and a democratic transition had commenced.
Some argue that this new sequencing of transitional justice may isolate those indicted and, ultimately, urge the repressive leaders to relinquish power, in this way helping to end human rights abuses. In the case of Libya, Susan Rice, US ambassador to the UN, argues that “The specter of ICC prosecution is serious and imminent and should again warn those around Gaddafi about the perils of continuing to tie their fate to his”. Guma el-Gamaty, a spokesperson for the rebel forces, similarly noted that the issuing of arrest warrants would be “a very important step along the way to putting more pressure on Gaddafi and his son” to leave office.
However, a more reasonable interpretation is that should Pre-Trial Chamber I choose to act favourably on Ocampo’s request, Gaddafi and his closest supporters will be pushed into a corner where it will be difficult for them to step down from power and find exile in another country. Since the ICC cases are based on a UN Security Council referral, not only state parties to the Rome Statute, but all members of the UN are forced to cooperate with the Court, meaning that potential arrest warrants would require nearly every single state to apprehend the Libyan suspects if entering their territory. Securing an exit route for Gaddafi, seen by many as the most obvious way of ensuring a political transition in the country, will thus become significantly more difficult if ICC arrest warrants are issued. Further, Saif al-Islam Gaddafi, who is among those named by Ocampo, is generally accepted to be a key player in any negotiated settlement to the conflict. Though Saif, earlier viewed in the west as a regime moderate, is reported to be behind much of the violence against civilians in Libya, it is not necessarily a good idea to indict him at this point if you are wanting to keep open the possibility of using diplomacy to end the conflict.
Despite intensifying the military campaign, NATO airstrikes have not yet proved effective for tipping the balance in the civil war to an extent where the rebels can seize power. In fact, three months into the war, some military officers, including Britain’s top military commander, General David Richards, have argued that unless NATO fundamentally revises its military strategy, the stalemate between pro-Gaddafi forces and the rebels may continue for a long time. Even if the strategy now seems to include killing Gaddafi, illustrated by last week’s bombing of Gaddafi’s headquarters in Tripoli, it remains doubtful whether a military solution to the conflict, which in one way or another ensures Gaddafi’s exit from power, will be found in the near future, and if so whether such a solution will bring peace to Libya.
It remains even more doubtful whether NATO forces or other forms of international intervention can lead to the arrest of Gaddafi and his closest allies. In particular, given that NATO powers have continuously objected to intervening with ground forces, it is unlikely that Gaddafi and his allies will be captured in any near future.
Should arrest warrants be issued but not acted on, this would be another point of criticism for an international judicial institution which has witnesses its latest indicted head of state, al-Bashir, travelling to numerous countries.
In sum, issuing ICC arrest warrants at this stage of the Libyan conflict seems to limit the prospects of a negotiated transition. Though Gaddafi is clearly a ruthless dictator and there can be little doubt that he is responsible for serious violations of human rights and humanitarian law, possibly amounting to crimes against humanity, indicting Gaddafi and his allies is more likely to prolong the conflict than to put an end to human suffering in the country.
Further, even if the UN Security Council resolution which required the intervention of the ICC Prosecutor was passed unanimously, the targeting of Libyan leaders raises further concerns about selectivity in the prosecution of international crimes. Since the ICC issued an arrest warrant on Sudanese president al-Bashir, African Union members – the largest regional group of state parties to the Rome Statute – have increasingly criticized the Court for being a political tool of the west to control African countries.
However, though the Court has so far only prosecuted Africans, this neo-imperialist argument should be approached with some care. Three of the six pending African cases concern state referrals, where the government has asked the ICC prosecutor to launch an investigation of crimes committed within its jurisdiction. Nonetheless, it is noteworthy that the Court has refused to investigate alleged war crimes committed by British soldiers in Iraq, and though operating on the basis of a UN Security Council resolution in Libya, it is difficult to explain why the crimes in Libya, but not the crimes in Syria, for example, should be prosecuted internationally.
Adding Libyan leaders to the list of ICC suspects in a context which makes them more likely to cling to power and continue repressing the civilian population is therefore likely to strengthen resistance to the ICC among African states and other critics of the Court. This may ultimately lead these states to withdraw from the Rome Statute, a threat which was already made following the Court’s intervention in Kenya. Should this happen, the ICC will face a major legitimacy crisis, which might, ironically, also prove an obstacle to accountability for international crimes committed on the continent.
The establishment of the ICC should be celebrated since it offers promises of accountability in cases where there would otherwise be none, something which may at times help prevent the recurrence of large-scale human rights violations, for example by deterring other leaders from using violence for political purposes. This objective, however, must be weighed against the risk that in specific cases the threat of prosecutions makes repressive leaders and war criminals more desperate to stay in power. In the case of Kenya, for example, the benefits of ICC prosecutions seem to outweigh the risks. However, not all cases are similar, and we must carefully scrutinize when and when not ICC prosecutions benefit what ought to be the ultimate goal of international justice, namely preventing the continuation or recurrence of severe human rights abuses.