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Will the ICC Help Defeat Qaddafi?

Author: Deborah Jerome, Deputy Editor
June 28, 2011

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Muammar al-Qaddafi could face a war crimes trial at The Hague after the International Criminal Court (ICC) issued arrest warrants for him, along with his son Saif al-Islam and his military intelligence chief General Abdullah al-Sanoussi. The June 27 warrants, which came on the one hundredth day of international military operations in Libya, allege the men were involved in ordering security forces to fire on unarmed protesters in February. But while many Libyans in Benghazi, Misurata, and elsewhere celebrated the ICC's announcement, questions abound about whether the warrants will speed the regime's fall or deepen its defiance (TIME).

Qaddafi and the others named by the ICC are accused of orchestrating the killing (WashPost), injuring, arrest, and imprisonment of hundreds of civilians during the first dozen days of the uprising against Qaddafi. Thousands more have died since. The hostilities have led to humanitarian concerns about the flight of Libyans into Europe and neighboring countries. Oil markets have also been disrupted, with oil prices at their lowest yesterday (National) since the start of the Libyan conflict, as markets prepared for a global release from crude reserves. The Qaddafi regime's ouster is a condition for the cessation of NATO military operations and the departure of allied troops.

The Qaddafi regime dismissed the court's announcement (Reuters). Libya is not a signatory to the Rome statute establishing the ICC in 1998, and the court only has jurisdiction in countries that have signed and ratified the statute; it relies on member states and other international organizations to perform arrests and has limited enforcement mechanisms. The only other warrant the ICC has issued for a sitting leader was in 2005 for Sudan's Omar Hassan al-Bashir, for crimes in Darfur. Bashir remains in power, though his movements out of the country are somewhat constricted (he is traveling to China this week).

So while the ICC warrants further isolate Qaddafi (alArabiya) and "dramatize the illegitimacy of his regime in the eyes of most of the world, [they do] not ensure he will appear in the dock at The Hague any time soon--if ever," writes London-based analyst Ray Moseley. Is the ICC warrant meaningless, then? Some human rights activists argue that such arrests can act as a warning to other repressive leaders. "The record from other conflicts also shows that arrest warrants for senior leaders can actually strengthen peace efforts by stigmatizing those who stand in the way of conflict resolution," says Human Rights Watch, noting "the indictments of Radovan Karadzic and Radko Mladic by the International Criminal Tribunal for the former Yugoslavia are credited with keeping them sidelined during the Dayton peace talks, which led to the end of the Bosnian war." White House spokesman Jay Carney said the Qaddafi warrant (CNN) is "another step in the process of holding him accountable."

Others, like the Guardian's Simon Tisdall, argue that "the court's demarche may reinforce Qaddafi's determination to stay" and fight. "Heads of state are less inclined to consider a negotiated settlement (CSMonitor), once they're in an armed conflict like this, if they have an international indictment hanging over their head," concurs Steven Groves of the Heritage Foundation. And if Qaddafi did step aside and accept exile, a deal would have to address his likely insistence on being shielded from arrest (LAT), which would effectively weaken international justice. The ICC warrant could serve as a "bargaining chip" in negotiations over ending Libya's civil war, writes Max Fisher on TheAtlantic.com, "but it's not quite international justice in the legal sense of the term."

"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," writes David Kaye, executive director of the UCLA School of Law International Human Rights Program, in Foreign Affairs. "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."

Selected Analysis

The ICC must place greater emphasis on strengthening the national justice systems of countries where atrocities have occurred, writes David Kaye. He argues in this CFR Special Report that accountability should be integrated into building rule of law after a conflict.

"International criminal tribunals are rife with shortcomings--and should remain only a secondary option, when local forms of delivering justice are impossible," writes CFR's Stewart M. Patrick on his blog, The Internationalist.

The ICC must decide how it will deal with aggression, a crime listed in the Rome statute. Trying to identify aggressors could politicize the court and undermine its credibility, says the Economist.

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