Libyan leader Muammar Gaddafi waves from a car in the compound of Bab Al Azizia in Tripoli, after a meeting with a delegation of five African leaders seeking to mediate in Libya's conflict April 10, 2011.
Libyan leader Muammar Gaddafi waves from a car in the compound of Bab Al Azizia in Tripoli, after a meeting with a delegation of five African leaders seeking to mediate in Libya's conflict April 10, 2011.
Louafi Larbi / Reuters

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.  

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.

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  • DAVID KAYE is Executive Director of the International Human Rights Law Program at the University of California, Los Angeles, School of Law.
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