Response to Claims that the ICC Deters Gaddafi from Leaving Power

There appears to be an emerging argument about how the ICC is undermining peace and reconciliation in Libya. Two recent Op-Eds, excerpted below, address the ICC in different ways but present the basic premise that ICC justice is incompatible with the other actions being taken on Libya. In particular, they suggest that the threat of ICC arrest warrants deters those charged with atrocities from going into exile where they will no longer be able to commit crimes:

Jackson Diehl, After the dictators fall, Washington Post, June 5, 2011:

“The ICC prosecution means that if Gaddafi surrenders he will end up in a cell at The Hague, rather than a comfortable exile. The U.N. Security Council has the authority to suspend ICC proceedings and could perhaps do so in exchange for Gaddafi’s agreement to step down. But no one wants to admit that it was a mistake to refer Gaddafi’s case to the ICC in February, a few weeks before the Western military intervention.”

Juliette Kayyem, Too soon to indict Khadafy: Human rights cause best served by limiting his time in power, Boston Globe, June 6, 2011:

“The effort to get rid of Khadafy is a military and diplomatic one now; indeed, the Obama Administration’s silence on the indictments indicates just how complicated the ground game is. If the court’s indictments were merely symbolic, then they could be easily ignored. But, they are also risky and unnecessary. While the court certainly hopes that the indictments will make Khadafy’s allies turn on him and turn him in, they were issued in the midst of a tenuous military and complicated diplomatic effort. And they will surely complicate it further.”

These two Op-Eds, taken together, may signify an effort to undercut the ICC by presenting a false scenario. As you will recall, on February 26 the UN Security Council adopted Resolution 1970 which unanimously referred the situation in Libya to the ICC, thus granting the Court jurisdiction over alleged crimes there. The referral had the full support of the 15-member Council, including the United States. This was a clear call on the ICC to prosecute Gaddafi, which the Court understandably felt it could not refuse. The ICC Prosecutor announced in early March that he would open a formal investigation. On May 16, he filed an application for three arrest warrants alleging crimes against humanity by three Libyan leaders, including Col. Muammar Gaddafi. The Court has not yet acted on that application. Far from silent, to date the US and many other countries have continued to support the ICC’s actions, even in light of the NATO action taken pursuant to UN Security Council Resolution 1973. The Op-Eds’ omission of the Security Council role in the referral and its unanimous and continuing support for it amounts to a self-serving sleight of hand.

The two Op-Eds also raise the question: Is exile realistic? There was some discussion of this when NATO actions began but Gaddafi has rejected it. News reports indicate that Gaddafi will most likely not leave, and the Security Council likely held this view in assessing the situation. Unlike the arrest warrants, an offer of exile does not necessarily have staying power and Gaddafi is unlikely to invoke it, regardless of whether the ICC ultimately issues an arrest warrant for him. The first Op-Ed correctly states that the Security Council may defer ICC proceedings under Article 16 of the Rome Statute. However, barring exceptional circumstances, this is very unlikely given that the Council requested the ICC action and knew well that the ICC Prosecutor would seek to indict Gaddafi. As we were reminded recently by the arrest of Ratko Mladic after over a decade on the run, it is not a question of if persons wanted by the ICC are arrested but when.