Did the Arab Spring Kill the ICC?

Could a western backed exile for deposed Arab leaders make the ICC irrelevant?

The International Criminal Court has a tough job. It is responsible for trying various politicians and military men for crimes against humanity without the actual ability to bring any of the accused to trial. The ICC relies completely on the willingness of member countries to bring these criminals to justice, yet there are only a handful of countries that are completely obliged to arrest those for whom the ICC issues warrants. Several other countries have signed on, but never ratified the treaty while still others (the United States included) have refused to recognize the legitimacy of the ICC. A simple look at a map can show just how many countries are not legally obliged to recognize ICC arrest warrants. Yet with an ICC warrant now issued for Qaddafi in Libya and potentially another for Assad in Syria, the limitations of the court are oh-too-obvious; indeed, the revolutionary tide of the Arab Spring may do irreparable damage to an already fallible international institution.

As I spoke about here (for Libya) and here (for Syria), to issue an arrest warrant for an acting leader is to create more obstacles to ending conflict. Qaddafi and Assad, theoretically, would be far more likely to agree to a negotiated settlement to their respective conflicts knowing that certain states in the world are waiting to arrest them and send them to trial. In a perfect just world, these leaders would be held accountable for their acts, but this world is neither perfect or just and occasionally justice must take a backseat to stability. Presumably, had the ICC issued arrest warrants for Mubarak in Egypt, the leader would not have been so easily driven from power (Egypt signed, but never ratified the ICC treaty), perhaps leading to more bloodshed. Likewise, Qaddafi may be deterred from voluntarily leaving his throne due to the warrant (though Libya never signed nor ratified the treaty):

One complicating factor in all of this is the recent ICC indictment of Qaddafi and his son. Even though Russia is not a signatory to the court, it makes negotiating with Qaddafi immeasurably more difficult, said Vandewalle.

“There’s much less incentive for Qaddafi” to go easily, he said. “His options have narrowed and it’s caused him to harden his position more than anything else.”

As it is the reputation of the ICC is somewhat tarnished. The first active head of state to be issued an arrest warrant by the ICC, Sudan’s Omar al-Bashir in 2009. has had no troubles traveling freely around the world. Bashir has visited Kenya, Eritrea, Egypt, Libya, Qatar, and Iran, though none of which have ratified the ICC treaty and are not obliged to arrest the Sundanese leader. Theoretically, then, an ICC arrest warrant has much more bite than it does in reality. Leaders such as Bashir, Qaddafi and potentially Assad are able to retire in many countries around the world without fear of arrest. Moreover, many signatory countries would likely ignore the warrant in order to salvage some type of peaceful agreement – South Africa or Venezuela, for example.

Basically, issuing an arrest warrant to an active head of state during a conflict can act as an impediment to ending the conflict. Yet if the leader steps down or is toppled from power, the arrest warrant can easily be ignored and avoided. And that is the laughable nature of ICC warrants before countries start actively undermining the court. Russia – who signed but never ratified the ICC treaty and thus has no obligation to arrest Bashir or Qaddafi – is in talks with the Libyan leader in an attempt to negotiate a settlement that may include Qaddafi retiring to a compound on the Black Sea:

One hypothetical solution could be the following: Russia reverses its position that it won’t take Qaddafi on its soil and allows him to settle at a secure compound near the Black Sea. In return, they get the gratitude of the successor Libyan government for having taken him out of the country. And the payoff for Moscow? Oil, says Mack.

However it is not just Russia that is thinking about ignoring the ICC arrest warrants. Libya has said Qaddafi has been in talks to find a peaceful end to the conflict (presumably this means immunity from prosecution for Qaddafi) with Italy, Norway, Egypt, the United Kingdom (backed by the US), Turkey and South Africa have all participated in back channel talks with Qaddafi. The most recent, and most overt, challenger to the ICC is France who has openly stated that it has been negotiating with representatives for Qaddafi about the leader’s exit from Libya. The French were the ones who fired the first missile to initiate the international intervention and were also the first country to recognize the rebel Transitional National Council, but apparently are ready for their role in Libya to be over (despite NATO officials complaining about a job poorly done).

The ICC arrest warrants that are easily ignored by the accused are already being blamed for potentially prolonging conflicts. What happens when the countries who have signed and ratified the ICC start ignoring its arrest warrants? Already a controversial and divisive institution, the ICC is being threatened with irrelevance due to the Arab Spring. Should countries like France, the UK and Italy agree to a deal that allows Qaddafi (and potentially Assad) to escape their arrest warrants in exchange for an end of hostilities, the ICC will have lost its biggest supporters and, more importantly, its reason for existence.

Photo from Lebanon Spring

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13 thoughts on “Did the Arab Spring Kill the ICC?

  1. There’s a deeper problem that you barely touched upon. The ICC has no jurisdiction in either Sudan or Libya since neither country sign, much less ratified, the Treaty of Rome which created the ICC.

    They don’t have the privilege of bringing charges against these individuals in the first place and no county should abide by any such illegal warrants that the ICC chooses to issue.

    1. I could be wrong, but I believe that the ICC has the authority to issue arrest warrants for any individual in any country. Signing and ratifying the Treaty simply means that the country is obligated to arrest the accused. Of course, whether this is just or right is debatable, but that does not mean that the charges against Bashir and Qaddafi are illegal. Seeing how easy it is for individuals to ignore the warrants, it is not that big of a deal (easy for me to say as I am not wanted…).

      I think, for the legitimacy of the ICC, it is a bigger problem if countries like France and the UK who have signed and ratified the Treaty of Rome start ignoring arrest warrants.

      1. From: http://untreaty.un.org/cod/icc/statute/romefra.htm

        Article 11
        Jurisdiction ratione temporis

        1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.

        2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

        Article 12
        Preconditions to the exercise of jurisdiction

        1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

        2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

        (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

        (b) The State of which the person accused of the crime is a national.

        3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

        Neither Libya nor Sudan ever became Party to the Statute of Rome. Hence, the ICC has no current jurisdiction over their leaders or citizenry.

      2. Jonolan (Jo? Nolan? Niether?),

        Thanks for bringing this to my attention. I assume the loophole used is Article 12, paragraph 3. It seems to me that if the TNC lodged a complaint against Qaddafi (presumably a formality) the ICC would be able to expand its jurisdiction into Libya. Do you read that differently?

      3. That can’t legally, as in within the bounds of the Statute, happen because the TNC isn’t the formally recognized government of Libya, despite France and England accepting them. It may be what happened though.

      4. Perhaps because the TNC was formally recognized by France who signed and ratified the treaty. I’m not sure – it is a tricky situation that many will simply ignore, seeing how Qaddafi is the ‘bad guy.’

  2. Many of the above statements are incorrect. Regarding Libya and Sudan as non-signatories to the Rome Statute (ICC’s legal centrepiece), you’ll find that they are normally outisde the ICC’s jurisdiction, however, can be referred by the United Nation’s Security Council (UNSC) in accordance with Chapter 8 of the UN Charter. It is incorrect to suggest that the warrants for Gaddafi and Bashir were illegal. This is controversial, but in my opinion less controversial and more democratic than the UNSC’s ability to take full control in the past.
    As for Omar Al-Bashir’s freedom to travel, there has already been suggestion by key members of his staff that he is having to avoid more and more foreign territories for fear of arrest. This is also evident when one looks at his itinerary, which by enlarge avoids ICC member states. Kenya and Uganda are two countries to have ignored their legal responsibility to adhere to the ICC arrest warrants for Bashir, yet evidence shows these decisions were painstaking for Uganda and Kenya respectively. On another note, European nations (with the exception of Russia) would never have in my opinion seriously considered taking in Gaddafi.
    In other words, the suggestion is that the ICC has a soft power component. To judge the ICC on each case alone would not be beneficial in examining its overall effect. It must be understood that a majority of countries have already signed the Rome Statute, with another 119 already having ratified the ICC’s legal centrepiece. There is a reason that the great powers and governments notorious for flouting human rights have failed to do so. The political realities of overcoming this problem are expected to be long and something the ICC drafters were well aware of.

    1. Scott – some thoughts:

      1) While Libya or Sudan could be referred by the UNSC, it does little to change the fact that the ICC has little enforcement power – Sudan being a perfect example. Bashir was outside the jurisdiction of the ICC, but was still indicted. Yet very little can be done to bring him to justice.
      2) Re: Bashir’s freedom to travel: of course it is limited, but that is hardly the goal of the ICC, right? My point is that an ICC indictment can be avoided easily. Of course, I never meant to imply that the US, Europe, etc. would take in Bashir.
      3) I agree that there is soft power to the ICC – as you said, the case to ignore the ruling of the ICC was tough to Uganda and Kenya. But soft power is different than power; a strong recommendation is far less compelling than a required mandate.

      The soft (power) underbelly of the ICC is what is exposed in the Arab Spring. International media outlets and politicians alike had called for the ICC to issue warrants for the arrest of Qaddafi, but there was little evidence that the warrant had anything to do with the toppling of the regime. On the other hand, there was ample evidence that many countries that supported the ICC were willing to overlook their responsibilities per the Rome statute in order to facilitate the end of the conflict.

      Finally, the lack of action by the ICC regarding Syria is evidence that there is currently a lack of will in the international community for the use of the ICC in domestic conflicts. I believe this lack of will stems, at least in part, from the understanding that such a warrant would not support a more peaceful solution to the conflict. (I say this knowing that there are plenty of other possibilities – ie a fear of the unknown that follows Bashar.)

      The point of the ICC is to bring criminals to justice in an international forum. Far too many states are now hesitant to utilize the ICC in various instances out of fear – again in part – that it would prolong the conflict. Without hard power, the ICC depends on the willingness of states to follow its rulings. When states openly ignore rulings (wasn’t the French negotiation with Qaddafi an open act of defiance?) and when states accept or refuse to use the ICC as it suits them, the ICC is greatly weakened.

      1. Chris – good thoughts

        You are correct in suggesting that the ICC has limited enforcement power. Furthermore, I’d agree that the Court’s main objective is to bring perpetrators of the most heinous crimes to justice. However, this is largely a question of time. The International Law Committee (ILC) knew at the time of drafting that overcoming the political realities of the international system, such as the dominance of the great powers, would take time, possibly decades. The ICC’s commitment to transformative change, to end impunity, and achieve universality of the Rome Statute, all indicate that at this point that the soft power approach is paramount. This would be analagous to the ‘Kyoto Protocol’ and other international legal frameworks.
        Was the soft belly of the ICC exposed in the Arab Spring, or did it just further highlight the inconsistency of the UNSC – an organ that existed long before the ICC? I think the ICC during the Rome Statute has provided the strongest framework to challenge the UNSC’s supremacy.
        Moreover, others may see the ratification of Tunisia following the Tunsiain revolution, the unprecedented attempt of an Arab nation to try a former leader in Mubarak, the vote of an Arab nation on the UNSC (Lebanon) to enfore a no-fly zone over another Arab nation (Libya) on humanitarian grounds, and, Saif Al-Islam Qaddafi’s negotiations with the ICC for possible surrender, as a victory for the development of global internarnational criminal law in the Arab region. Furthermore, I believe increasingly there will be connections drawn between civil society organisations that largely supported the Arab Spring, and their historical support for the Coalition for an International criminal court (CICC).
        You are also correct that many countries are flouting their responsibilities to the ICC. However, if one is to consider the Bilateral Immunity Agreements (BIA) that the US has signed with over 90 states, including Uganda, it is easy to see the obstacles faced by the ICC behind the scenes. It wouldn’t be hard to surmise that the US would only sign such agreements as a reaction to increasing ICC influence.
        Again, if I can revisit the French. Apologies for being vague, but I did not realise at any point that they would play a role in Qaddafi’s seeking immunity. My understanding of the French legal system is that they are extremely supportive of the ICC, and have recently drafted strict laws deeming denial of the Armenian genocide as a crime. French and Belgian law inparticuarly is constructed to allow the legal fraternity the right to pursue human rights perpetrators worldwide, even in absentia. The biggest problem the french had with the ICC was a culpability issue based on the onus of proof.
        In any event I think this is a worthy debate on either side : )

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