The Libya Crisis and the ICC

by Peggy McGuinness

Although I support the Security Council referral of the Libya situation to the ICC, I do not have any degree of confidence that the ICC referral has not altered Moammar Qaddafi’s negotiating or fighting posture at this time.  I have no idea whether Qaddafi’s state of mind (if you can even refer to it in normal psychology terms) has or has not been altered by the ICC referral.  And whether Qaddafi himself says it has been or not would obviously be completely unreliable. On the other hand, I don’t think there is anyone in a position to say with any degree of certainty that Qaddafi would indefinitely remain in power if the ICC had not been invoked.  We need to acknowledge that the threat of prosecution for past crimes does have some effect on individual behavior.  (And in the case of Qaddafi, effectively cut off the chance that he could seek exile in Venezuela, a state party to the ICC.)  But we also need to be honest that we really have no reliable way of knowing, ex ante, whether that effect will include a worsening of atrocities and crimes themselves.  Sadly, we won’t really know until we have reached some sort of end point in the current crisis.  And even then it will be difficult to make any reliable determinations of what the alternative outcomes might have been.

On this question of bargaining away justice for peace, there is one minor parallel with the crisis in the Balkans in the 1990s.  Before the international community could agree on meaningful intervention in Bosnia, it created the ICTY.  Many at the time saw this as a move to be seen as “doing something,” without committing troops or using force to end the war.  One effect of that move to “do something,” as I have written about here, was a kind of “tail wagging the dog” scenario where, because  the framework for prosecution of past atrocities was created before the more robust intervention and the final peace process took place, the idea of criminal prosecution became a non-negotiable.  The U.S. and other western powers were able to temporarily postpone the danger that they couldn’t negotiate with potential indictees by lending only anemic intelligence support to the ICTY until after the Dayton process was over.  Still, once the court was in place, it had to be factored into any peace process.  In some ways it was a useful bludgeon (keeping Karadzic and Mladic out of Dayton); in other ways it limited options that some of the mediators might have wished to have on the table.  One of the concerns many of us have about the ICC as a permanent institution was the danger that a prosecutor could open an investigation without coordination with the other actions of the international community.   Disconnecting criminal prosecution from peace processes and/or transitions to democratic removes some flexibility and tends to narrow options for a negotiated peace.   The ICC statute as currently drafted preserves a role for the Security Council, and in the case of Libya, the referral itself was passed unanimously by the Council.  This means the ICC case is already a part of the international response. In fact, this was precisely the sort of referral process the U.S. supported in 1998 at the negotiations over the Rome Statute and, for me, is the highest best use of an ICC that is now a permanent part of the international legal architecture.  The Security Council is a deeply flawed instrument to reflect the power and will of the international community, but it is the best one we have.

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