R2P v. ICC?

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.