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R2P v. ICC?

Roland Paris | June 24, 2011
Luis Moreno-Ocampo, International Criminal Court prosecutor, addresses the media about crimes in Sudan, Libya, and Darfur at the UN Headquarters in New York June 8, 2011.  REUTERS/Lucas Jackson (UNITED STATES - Tags: POLITICS CRIME LAW)

I continue to believe that military intervention was warranted in the face of Muammar Qaddafi’s explicit threats against the population of Benghazi. But it’s also true that humanitarian intervention creates its own problems, including those which André identified in his latest post on the difficulties of implementing the Responsibility to Protect (R2P) in practice.

Let me add one more concern to André’s list: the apparent incongruity between NATO’s strategy in Libya and the judicial processes now underway at the International Criminal Court.

The ICC will decide on Monday whether to issue arrest warrants for Libyan leader Muammar Qaddafi, his son and brother-in-law for ordering attacks on unarmed civilians. A successful trial of Qaddafi would be a triumph for the ICC, but he would need to be arrested first – and the threat of arrest may make it harder to end the Libyan war.

The ICC chief prosecutor, Luis Moreno-Ocampo, told a Spanish newspaper that he is “working on the assumption he (Gaddafi) will be arrested by his people, by members of his regime.” That’s always possible, but it’s not clear why an ICC indictment itself would convince people around the dictator to turn against him. Surely, NATO’s bombing of Tripoli, which has intensified in recent weeks, is a greater threat to regime loyalists – yet there has still been no coup. Given the choice between fight and flight, most of the senior government officials who have abandoned Qaddafi to date have opted to flee.

In the best of all possible worlds, this wouldn’t matter. Eventually, the imbalance in power between NATO and Qaddafi’s forces would result in his defeat and arrest. But in the real world, the political coalition supporting the NATO air operation shows signs of fraying. On Wednesday, Italian foreign minister Franco Frattini called for a suspension in NATO bombing, further exposing intra-alliance rifts already visible in Germany and Turkey’s refusal to participate in the operation. The Arab League, whose initial acquiescence provided a crucial legitimizing stamp for NATO’s intervention, is now all but opposed. So is the African Union, including its most powerful member, South Africa, which initially voted in favour of Resolution 1973 authorizing the use of military force to protect civilians, but now claims that NATO is “abusing” the resolution.

This is not a war in which NATO is prepared to “fight on the beaches and landing grounds.” Alliance members would likely welcome a less-than-perfect resolution if it could end the fighting with Qaddafi relinquishing power. True, by all appearances he has no intention of giving up and may even already see himself as a martyr. But maybe, just maybe, that assumption is wrong. Perhaps he would agree to some kind of negotiated departure.

Libyan rebels are reportedly engaged in discussions with the dictator through intermediaries in France and South Africa. Earlier today, the spokesperson for the rebel National Transitional Council said the rebels would “have no objection” to Qaddafi staying in Libya, as long as he left power. More likely, however, if Qaddafi were to resign, he would end up in another country. Don’t forget that the Ugandan despot Idi Amin lived out his final days in a hotel in Jeddah, Saudi Arabia. Amin deserved to be tried and convicted of crimes against humanity, but his compatriots were mostly happy he was gone.

But here’s the problem: The ICC judicial process, which was initiated by a referral from the UN Security Council, now seems potentially at odds with NATO’s political and military strategy. If Qaddafi feared arrest, why would he willingly resign?

The creation of the ICC was a great achievement in the history of international justice – and it has already established a strong track record. However, being a proponent of the ICC shouldn’t blind us to questions about the coordination of international diplomatic, military and judicial instruments, including in circumstances such as Libya. Nor should we assume that R2P and the ICC are always mutually reinforcing.

  • Stephen McCluskey

    Although there is a widespread belief that the actions of the ICC are at odds with the political and military strategy of removing Gaddafi from power, we should not ignore the positive influences ICC arrest warrants can have.

    First, by changing Gaddafi’s legal status from the leader of a sovereign state to a fugitive from justice, the warrants may change the international political environment. By altering the attitudes of those countries and regional organizations that have been ambivalent toward Gaddafi, ICC action may—to some extent—heal the rifts in the opposition to Gaddafi.

    Secondly, the warrants open new justifications for action to arrest Gaddafi. Although the NTC may lack the resources to arrest Gaddafi, it may call on NATO to assist (on the model of the French intervention in Côte d’Ivoire) under UNSCR 1970. The ICC Prosecutor has also stated that arresting Gaddafi would protect the people of Libya, which seems to put such action under UNSCR 1973.

    Finally, the arrest warrants can play a role in a negotiated settlement. It is possible for the UNSC to suspend ICC action for a year—repeatedly. Such suspensions could be agreed, subject to Gaddafi’s continued adherence to the terms. Lacking good behavior, one of the permanent members could veto the next suspension, and the course of justice would resume.

    In sum, ICC action can make positive contributions to a strategy of removing Gaddafi from power.

  • Alana Tiemessen

    Great post Roland.

    I think another area of tension between R2P and ICC is, at least in my interpretation of the original ICISS report, that international justice was meant to fit into the third pillar of R2P – the “Responsibility to Rebuild.” International justice in the post-conflict phase is judged by its ability to achieve apolitical judicial and social goals. But using justice in tandem with military force gives it a decidedly more political and strategic objective. So combining international justice with sanctions or military force as a means to remove war criminals is outside the R2P norm in that sense….maybe.

    I also find it troubling that military force and an ICC arrest warrant both seek his removal but potentially with different thresholds for victory. Short of the most desirable option – his removal by arrest – NATO would likely consider his exile or (accidental or deliberate) death a victory, whereas dead war criminals are always a failure for international justice.

  • Mark Kersten

    This was both an interesting and timely post. I have three brief points to contribute.

    1. There is zero evidence that Gaddafi’s continued reliance on violence is the result of the ICC warrant. He has not said that “If the ICC dropped the warrants, I would leave the country” or “if the ICC dropped its warrants, I would stop my role in the war.” If a negotiated resolution to conflict is not possible, it is not because of the ICC warrants, but because the rebels refuse to negotiate a deal that includes Gaddafi in a position of power. It seems more likely that Gaddafi desire to stay in Libya and “fight to the death” is the result of the military engagement by both the rebels and NATO which threatens his life rather than the ICC which threatens his freedom.

    2. There are legitimate arguments which Dr. Paris considers in this post regarding the coordination and sequencing of peacebuilding with the pursuing of international criminal justice. Indeed, reading this reminded me of Dr. Paris’ Institutionalization Before Liberalization (IBL) thesis. Applying IBL to the tensions between R2P-based military engagement and ICC-based justice would provide, in my view, a more theoretically sophisticated understanding of arguments regarding sequencing peace and justice.

    3. More broadly, I wonder if this “apparent incongruity” between the ICC and R2P marks a break in “humanitarian international politics.” R2P and the ICC derive from the same political, moral and legal impulses and convictions and, at least theoretically, could be mutually re-enforcing. Indeed, it’s rare to find a supporter of R2P who does not support the ICC, and vice versa. In practice, however, they increasingly appear to be in tension. It may have been wishful thinking to believe that the humanitarian zeal and zest of the 1990s, which culminated and both R2P and the ICC, would not lead to tensions and divisions. All good things rarely, if ever, come together.