The role of the International community in Libya is providing much fodder for analysts (particularly folks not residing in Libya) to chew on. Of particular interest is the International Criminal Court (ICC) which recently issued arrest warrants for Muammar Qaddafi, his son Seif al-Islam, and his chief of military intelligence Abdualla Al-Senussi. I have written about the theoretical conundrum that the ICC faces when deciding whether to issue an arrest warrant to acting heads of state (although the White House seems to be confused as to what constitutes a head of state). In other words, leaders must decide between bringing war criminals to justice (via the ICC) and permitting amnesty in exchange for an expedited end to conflict.
Steven Groves says of this potential trade-off: “Heads of state are less inclined to consider a negotiated settlement, once they’re in an armed conflict like this, if they have an international indictment hanging over their heads.” Likewise, Washington Post columnist Jackson Diehl wrote “[t]he Libyans are stuck in a civil war in large part because of Gaddafi’s international prosecution.” The ICC indictment, the argument goes, simply gives Qaddafi more incentive to stay in power. Stewart Patrick, at the Center of Foreign Relations, disagrees. Patrick argues that the choice between justice and peace is a false dichotomy that need not be forced on the international community, arguing that Qaddafi has already made it clear that he has no intention of willfully stepping down, that the ICC warrants could encourage more defections from the regime and, importantly, that future violence is likely in situations where justice is sacrificed.
Megan MacKenzie revisits this justice vs peace question, arguing that amnesties have historically played a large role in ending violence. MacKenzie in turn cites Yasmin Naqvi’s explanation that “amnesties for war crimes and other international crimes come into being mainly when states are going through periods of transition, often from war to peace, and of extreme political upheaval, for example, the handing over of power from military regimes to democratic civilian governments.”
Turning away from the theoretical and focusing on reality offers a cloudy future for the ICC. Whether or not the ICC arrest warrants will add addition obstacles to a negotiated settlement for Qaddafi is debatable. In Libya’s case, I find myself agreeing with the theory espoused by MacKenzie and others – an effective ICC capable of following through on its warrants would certainly be a deterrent to amnesties. However, Libya is not required to hand Qaddafi over to the court, permitting a negotiated end to Qaddafi’s rule without the fear of an ICC trial obstructing peace. Indeed, the only other active head of state charged by the ICC is Omar al-Bashir in Sudan and last time I checked, Bashir was hardly sweating the ICC indictment. (Bashir has made official state visits to Kenya, Eritrea, Egypt, Libya, Qatar, and Iran, though he was forced to cancel a trip to China.)
The fact of the matter is that the ICC has a fundamental flaw that ensures that Bashir, and perhaps Qaddafi, can ignore their arrest warrants: the ICC lacks the capability to arrest indicted criminals in many states around the world. Should Qaddafi negotiate an end to the civil war by agreeing to amnesty from prosecution in Libya – or even in exile in, say, the United States – he would be immune from the ICC as long as he remained in one of the 79 countries that have not ratified the Treaty of Rome. In other words, the amnesty for peace or justice choice is hardly relevant in countries such as Libya or Sudan. The Transitional National Council (TNC) could eliminate the possibility of negotiations and make this debate relevant again by promising to hand over Qaddafi to the ICC. However, as it currently stands justice in Libya is a choice, despite the ICC indictments.
Photo from Khadafy Must Go