The ICC in Libya: Beyond Peace vs. Justice

Just weeks after Colonel Moammar Gadhafi initiated his crackdown on civilian protesters, the United Nations Security Council unanimously passed Resolution 1970, referring the situation in Libya to the International Criminal Court (ICC). Human-rights groups joined a chorus of international actors in exclaiming that the Security Council’s decision was a victory and milestone for justice. Almost as quickly, however, critics of the ICC began to blame the Court for impeding a peaceful resolution to the conflict in Libya. The controversy was unsurprising. As in the case of northern Uganda and Sudan, commentators and scholars alike have framed the ICC’s judicial interventions as a trade-off between peace and justice. But was either side in this dichotomous debate right in its assertions?

Readers are likely familiar with the arguments central to the “peace versus justice” debate. On the one hand, many claim that there is “no peace without justice” – that achieving accountability and fighting impunity is a moral imperative, and that no “true” peace can exist if justice isn’t achieved. Advocates of the ICC further argue that pursuing justice can marginalize the perpetrators of atrocities, halt the spiral of violence by preventing victims from seeking violent retribution, establish truths about the commission and experience of atrocities, and provide closure to victims and survivors.

On the other hand, critics of the ICC argue that there is “no justice without peace” – that seeking to bring warring parties to justice can hamper peace processes by making it impossible to offer amnesties or exile to belligerents. Faced with the prospect of trials and imprisonment, warring parties will not engage in peace negotiations. If justice is pursued at all, proponents of this perspective argue, it should wait until a certain degree of stability and order is firmly in place.

The arguments on both sides are intuitive and simple enough to seem sensible. The problem is that they often misrepresent reality.

Libya is a case in point. Observers didn’t shy away from deploying “peace versus justice” rhetoric in their descriptions of the crisis in Libya. In particular, critics of the ICC claimed that the Court’s involvement prevented Gadhafi from seeking exile and instead gave him every incentive to continue fighting. Military historian and foreign-policy analyst Max Boot claimed that the ICC ensured Gadhafi would “fight to the death and take a lot of people down with him.” Washington Post writer Jackson Diehl exclaimed that Libya was mired “in a civil war in large part because of Gaddafi’s international prosecution.” The Globe and Mail columnist Doug Saunders similarly suggested that the ICC backed Gadhafi into a corner. “[T]he ICC may have perpetuated, rather than ended, his crimes,” Saunders wrote. “Col. Gadhafi and his sons and generals do not dare end their campaign of violence if it means spending years in a Dutch cell.”

Unfortunately for these commentators, there is little evidence that Gadhafi’s behaviour or decision-making was affected by either the ICC’s investigation or the arrest warrant issued against him, his son (Saif al-Islam Gadhafi), and his intelligence chief (Abdullah al-Senussi). Negotiations were initiated by the African Union in April 2011 and quickly failed – but not once because of the Court. Libya’s National Transitional Council (NTC), which was set up to represent the rebels, outright rejected negotiations that would result in Gadhafi retaining any power. Meanwhile, offers of exile were extended to the Libyan leader on a number of occasions. As late as July 2011, NATO states sought to break the apparent stalemate in the war by seeking a political solution to the crisis and offering Gadhafi exile into a non-ICC member state such as Belarus, Zimbabwe, or Sudan. Gadhafi, however, consistently vowed that he would not leave Libya, reiterating time and again that he would die a “martyr.” Gadhafi’s last will is telling of both efforts to provide him with a safe haven outside of Libya as well as his recalcitrance to such a fate:

Let the free people of the world know that we could have bargained over and sold out our cause in return for a personal secure and stable life. We received many offers to this effect but we chose to be at the vanguard of the confrontation as a badge of duty and honour.

Importantly, it was in the context of failed solutions to remove Gadhafi peacefully that the NATO powers decided to step up military efforts and shift towards regime change as a legitimate outcome of the intervention. Prior to July, there had been significant disagreement among international leaders about whether targeting Gadhafi was a legitimate goal of the military intervention. However, as last-ditch attempts to negotiate a “political solution” that included exile for Gadhafi sputtered, attitudes shifted. Within weeks, the military stalemate was broken, Tripoli fell to the rebels, and, on Oct. 20, 2011, Gadhafi was killed.

Gadhafi’s lack of concern for the ICC’s investigations and arrest warrants should be unsurprising. Gadhafi was likely more concerned with the NATO-led military intervention that could lead to his demise than with any loss of personal freedom by being sent to The Hague. Similarly, the defections of Gadhafi loyalists and senior military figures cannot be attributed to the ICC – it is more likely that they saw the writing on the wall and understood that staying with Gadhafi meant certain defeat and possible death.

There is, nevertheless, an overlooked effect that the ICC had on the conflict. The association of NATO’s military intervention with both the ICC and the “responsibility to protect” doctrine helped legitimize NATO’s military operations. NATO support for the ICC’s work in Libya waned as soon as it became clear that only total military victory and regime change would end the conflict, conclude NATO’s obligations, and remove Gadhafi from power. In late July, rhetoric from the intervening NATO powers began to shift. Rather than vocal support for the Court’s role, as had been expressed earlier in the conflict, intervening forces began suggesting that any question of justice was ultimately for Libyans to decide. This shift was politically cunning. To argue against it was to argue against the sovereignty of the Libyan people. Yet it left hanging the ICC and the mandate it had been given by the UN Security Council. Observers and scholars interested in the ICC’s effects on Libya must now examine how powerful states instrumentalize the Court in order to legitimize and wage war. In the wake of the crisis in Libya, perhaps the Court should reconsider its relationship with the UN Security Council.

The fact that the same states that invoked the ICC through Resolution 1970 have since abandoned the Court has contributed to a fight about how justice will be served for Gadhafi’s son and former heir, Saif al-Islam. The ICC and Libyan authorities are locked in an intense battle over his fate, exposing sharp divisions within the Court itself. The ICC and the NTC are currently engaged in a tug-of-war over the fate of Saif al-Islam. Judges at the ICC, fearing that Libya will give Saif an unfair trial and then the death penalty, would like to see him surrendered to the Court. Libya, however, remains insistent that Saif will be tried in Libya, by Libyans. Rather oddly, the Libyan government appears to have the support of the ICC’s prosecutor in the matter. Whether or not some compromise can be reached remains to be seen. Regardless, the ongoing saga suggests that the ICC’s most significant effects on Libya will not have been on the war, but on post-Gadhafi Libya.

There are undoubtedly real impacts and valid concerns that emerge when international criminal justice is pursued in the context of ongoing conflicts. But the case of Libya demonstrates that they are not always captured within the overly simplistic “peace versus justice” debate, however intuitive it may be.

Photo courtesy of Reuters