You Down With ICC (Yeah You Know Me)

Only countries in green are members of the ICC

The recent news that the International Criminal Court (ICC) has issued an arrest warrant for Libya’s Muammar Qaddafi has elicited very different reactions from around the world. The warrant is in response to allegations that Qaddafi, as well as his son Seif al-Islam and his feared chief of military intelligence Abdullah Senussi, knowingly ordered the army to shoot and kill unarmed protesters in the early days of the Libya revolution. While the arrest warrant is the cherry on top of the NATO led push to remove the leader from power, it has the potential to complicate matters for the west and its rebel allies.

Predictably Qaddafi has completely rejected the warrant out of hand and it would be shocking (even for the unpredictable leader) if Qaddafi at any point turned himself in for trial. A Qaddafi spokesman defiantly said that the ICC “functions as a European foreign policy vehicle” and that the warrant was simply “cover for NATO which is still trying to assassinate Gaddafi.” On the other hand, the reaction to the arrest warrant in rebel-controlled Benghazi was filled with jubilation and the hope for justice. Yet the arrest warrant could complicate efforts to find a negotiated settlement to the Libyan conflict.

In addition to rebels refusing to negotiate with a “war criminal” regime, the ICC arrest warrant limits the options available for exile should Qaddafi agree to some sort of settlement. Though it seems as though Qaddafi is determined to remain the leader of the perpetual revolution in Libya, his options are drying up quickly as NATO and the rebels are advancing quickly towards Tripoli and rumors are swirling that the leader may evacuate the capital city. If Qaddafi did opt for a negotiated retirement, the warrant limits his options. As Max Fisher notes, there are many countries (see map above) that do not recognize the ICC and are therefore not obligated to hand Qaddafi over to ICC authorities, thus allowing Qaddafi to settle in any number of places.

Even if Qaddafi agreed to a negotiated deal that granted him exile in, say, Venezuela (or Colorado), NATO currently controls the Libyan airspace. Thus, allowing Qaddafi to leave Libya would mean that NATO countries would face an unenviable choice of granting exile to Qaddafi and ignoring the ICC or adhering to and thus legitimizing international law. Moreover, if Qaddafi were to be exiled, it hardly means that he will escape prosecution: former general Ratko Mladic had avoided arrest for more than a decade before being handed over to an international tribunal.

Though if Qaddafi refuses to step down from leadership, the ICC warrant really means nothing. A quick look at the only other head of state that has been indicted by the ICC shows that there is relative immunity for visiting leaders: Sudan’s President Omar al-Bashir was issued a warrant in 2009 and has paid official visits to Kenya, Eritrea, Egypt, Libya, Qatar, and Iran. In other words, the ICC arrest warrant may be little more than a symbolic victory for the opposition in the country. If Qaddafi refuses to step down or if he settles in any number of countries, he could potentially avoid the ICC for the rest of his life (he is an old 69).

In the end, the warrant could be used as a bargaining chip:

If Qaddafi offers to step down in exchange for immunity from the ICC arrest warrant, he can probably find a member country — Venezuela, for example, or South Africa — that would be willing to ignore the warrant. Ultimately, the arrest warrant is likely to serve as little more than another bargaining chip in any negotiations over ending Libya’s civil war. That’s a good thing — as fighting worsens and civil society degrades, anything that makes peace more likely is essential — but it’s not quite international justice in the legal sense of the term.

Yet I am not sure that Qaddafi would agree to a negotiated settlement that includes his exile. Though it seems as though Qaddafi’s reign will end eventually, I am not convinced that the leader would accept a nice house in Venezuela in exchange for relieving himself of power. While the best we can hope for is a quick agreement between the rebels and Qaddafi (as it would inevitably shorten the conflict), the realist in me says that Qaddafi is looking at either death during a final siege or facing trial after being captured. Unfortunately, the ICC has no way of speeding up either of those two outcomes.

Photo from The Atlantic

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