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.

The Arab League's position on arresting the three Libyan suspects could be crucial, much as its support for military action facilitated adoption of Resolution 1973. Moreno-Ocampo has noted that "states in the region" have cooperated with his investigation, a presumable reference to members of the Arab League that may have provided information about, for example, Qaddafi's role in putting down the rebellion. Going forward, Moreno-Ocampo would like to see the Arab League provide support, even if its members do not use force themselves.

Three factors, however, may stand in the way of real Arab cooperation to arrest the Libyan three. First, some Arab states may argue that supporting the arrests will undermine their policy of opposition to the arrest warrants against Sudan's President Omar al-Bashir, who, despite being the subject of an arrest warrant for atrocities in Darfur, has been supported by the Arab League. (Indeed, not long after Hosni Mubarak stepped down as Egyptian president, Bashir was the first head of state to travel to Egypt, a visit he had made during the two years since being under threat of an arrest warrant.) Second, some states may see themselves as possible safe havens for Qadaffi, which would lead to the end of the conflict, and would thus not want to close off the option of exile. And third, some Arab countries may not want a trial to be held, since that would offer Qaddafi the opportunity to expose the long-term cooperation and stature he enjoyed in Africa and the Arab world.

With all this uncertainty about if and how the warrants can be enforced, how might the ICC's involvement in the Libyan conflict be any more effective than its unenforced warrants for Bashir in Sudan? At the most basic level, Moreno-Ocampo's request for arrest warrants logically follows from the language in both Resolutions 1970 and 1973. Arrest warrants will forever label these three as alleged international criminals, permanently isolating them. Like former Yugoslav President Slobodan Milosevic, former Liberian President Charles Taylor, and former Serb leader Radovan Karadzic before them, the Libyan suspects may have to wait, but there remains a possibility that they will eventually find themselves in a cell in Scheveningen, the Dutch prison used by the international criminal tribunals in The Hague.

Still, whether Moreno-Ocampo's gambit pays off is yet to be seen. He apparently rejected other approaches. For example, he could have told the Security Council that he would not seek arrest warrants unless he was confident of receiving UN assistance in enforcing them. For now, he has given NATO the gift of a prosecutorial gloss on Operation Unified Protector without receiving public promises of support.

What is more, an empty defendant's chair will increasingly lead to recriminations among ICC supporters and member governments. With the possible exception of action by Qaddafi's own security forces, all the roads to The Hague seem blocked. Even worse is the potential, as James Lindsay at the Council on Foreign Relations points out, that arrest warrants give the Qaddafis "another reason to hang on and fight." Even Philippe Sands, a British law professor and a strong and high-profile supporter of the ICC, warns that Qadaffi is now likely to dig in his heels, making the conflict more difficult to bring to a conclusion.

For his part, Moreno-Ocampo has promised, in typical grand rhetorical style, that "there will be no impunity in Libya." Yet what if there is? What if the Qaddafis negotiate a safe haven in return for leaving Libya and ending the conflict? Does the ICC stand in the way of that kind of deal? Should it?

The warrants represent a high-risk move by Moreno-Ocampo. A positive ending to the story -- the arrest of one or more of these perpetrators and their transfer to The Hague -- would make the public perceive the ICC as a real player. But a bad outcome -- no arrest, continued atrocities, a safe haven or something else for the Libya three -- could further ingrain in the international community an image of the court as more of a tool than a valuable end in itself.