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