Wanted: Qaddafi & Co.

Essay

Who's Afraid of the International Criminal Court?

David Kaye

A decade on, the ICC is still trying to find its footing, thanks partly from the chief prosecutor’s poor management and excessive ambition. The election to replace him is a chance to reboot.

Snapshot

Let Tripoli Try Saif al-Islam

Timothy William Waters

Ever since Saif al-Islam al-Qaddafi was captured last month by Libyan rebel fighters, the International Criminal Court has hoped to try him in The Hague. But the Libyan people bore the brunt of the Qaddafi regime's tyranny for nearly half a century, and it is to them that Saif al-Islam should answer.

Snapshot

America's Honeymoon with the ICC

David Kaye

The Obama administration has bolstered the International Criminal Court in an effort to prevent atrocities worldwide. Still, Congressional opposition and developments in conflicts abroad might make it hard for Washington to continue to cooperate with the court.

This week, the chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, asked a three-judge panel to issue arrest warrants for the Libyan leader Muammar al-Qaddafi; his son Seif al-Islam; and his brother-in-law, the head of Libyan military intelligence, Abdullah al-Sanousi. Soon the ICC will likely issue warrants on charges that the three have committed crimes against humanity during their attempts to suppress Libya's ongoing revolt. 

But issuing warrants is one thing; getting custody of the accused is quite another. As I argued in the May/June issue of Foreign Affairs, the Security Council and other major players have not provided the kind of support the ICC needs to gain custody of those accused of war crimes, crimes against humanity, and genocide. How might the ICC get the Qaddafi clan to a courtroom in The Hague? The simplest answer, of course, is that Qaddafi, Seif, and Sanousi will surrender -- a far-fetched scenario unless they see such an outcome as preferable to being captured by the rebels. More plausible is that someone will arrest them. Barring action by Qaddafi's own forces (the best hope for their transfer to The Hague), the ICC will have to rely on the power of other states and international organizations to go after Qaddafi and his allies, as it has no police or army of its own. How can we expect those others -- especially the Security Council and NATO -- to respond to requests to enforce the warrants?

It is unlikely that the UN Security Council has the will to back up the arrest warrants with concrete action. Under Resolution 1970, by which the council referred Libya to the ICC for investigation, it has already imposed military and financial sanctions on Libya and instituted a travel ban on the Qaddafis and Sanousi. Some weeks later, the Security Council passed Resolution 1973, authorizing a no-fly zone and the use of force to protect civilians. What more can it do to support ICC arrest warrants?

First, the Security Council has not adopted a resolution to require all governments to enforce the ICC arrest warrants related to Libya. (It has not done that for its 2005 referral of Sudan to the ICC, either.) For now, upon request by the ICC, only the 114 member states of the ICC would be obligated to arrest a person subject to an arrest warrant and transfer him or her to The Hague. Other countries could do so as a courtesy. This leaves Qaddafi with dozens of possibilities for a safe haven, such as Saudi Arabia, Venezuela, or any number of African countries led by a friend of Qaddafi.

Second, the council's authorization of "all necessary measures . . . to protect civilians and civilian populated areas under threat of attack" seems broad enough to cover enforcement of arrest warrants. Still, the Security Council should reaffirm its support for the ICC's actions, whether by resolution or presidential statement, a nonbinding document that reflects the views of the council. Beyond that, the council could call on Libyans themselves to ensure that if they are captured, the Qadaffis are not summarily executed but instead arrested and brought to justice, either in domestic courts or at The Hague.

To be sure, Security Council statements and resolutions alone would not bring the Qaddafis to The Hague. What the ICC really needs is political and diplomatic support, which among other benefits would close Qaddafi's escape routes to willing countries. Yet China and Russia, which can veto any Security Council resolution, expressed misgivings about intervention in Libya soon after the Security Council approved it. Whatever qualified support they offered to UN Security Council Resolutions 1970 and 1973 has dissipated, with the NATO air campaign now entering its third month. Moreover, although the United States has stood behind the referral and the NATO operation, it is far from clear that Washington would support a resolution that would "obligate" all states to enforce ICC arrest warrants. Such an obligation would likely be seen as interfering with the ongoing military mission; meanwhile, many members of the U.S. Congress, especially Republicans, would not approve of any requirement to support the ICC.

In contrast, NATO seems thrilled by Moreno-Ocampo's request. On Tuesday, NATO's spokesperson, Oana Lungescu, said, "The evidence that the prosecutor has gathered is a stark reminder of why NATO is conducting operations in Libya." Using even stronger terms, she said, "It's hard to imagine that a genuine transition in Libya can take place while those responsible for widespread and systematic attacks against the civilian population remain in power." In other words, ICC warrants would provide political support to NATO's operations; less clear, however, is whether NATO will pay the favor back and expand its mandate from ending attacks on civilians and enforcing a no-fly zone to include arresting the three Libyan suspects.

Arresting the three would require "boots on the ground," a scenario that has largely -- if not categorically -- been taken off the table, especially by the United States. The last time NATO faced such a predicament, in Bosnia in the 1990s, it long resisted devoting any of its resources to enforcing arrest warrants issued by the UN International Criminal Tribunal for the Former Yugoslavia, even when it had significant numbers of troops on the ground. This sort of hesitation may be at work today, too: When British Foreign Secretary William Hague made a statement welcoming the announcement that Moreno-Ocampo was seeking arrest warrants in Libya, he pointedly avoided mentioning military support for arrests.