Threat of Prosecution Plays a Role in Libyan Defection
Critics of the Security Council’s decision to refer the situation in Libya to the ICC normally argue that the referral denies Gaddafi the option of going into exile instead of fighting to the death. That may or may not be true — as I’ve noted previously, Max Boot’s reliance on Charles Taylor’s prosecution to make that argument fudges the actual history of Taylor’s abdication. The criticism nevertheless overlooks one of the most important benefits of the ICC’s interest in a situation: the incentive it provides lower-level officials to abandon their regimes, lest they eventually end up in the dock alongside their beloved leaders. Indeed, it seems that members of Gaddafi’s regime are already getting the message (emphasis added):
The United States said Thursday the defection of Libya’s foreign minister Mussa Kussa would provide critical intelligence about Moamer Kadhafi’s mental state and military plans.
As British officials debriefed Kussa after his flight to London late Wednesday, the White House also reiterated a senior official’s earlier assessment that his decision was a major blow to Kadhafi’s government.
When asked if Feltman [the US's assistant secretary for Near East affairs] encouraged Kussa to defect, Toner replied that Feltman made clear “our desire to see Kadhafi go and the fact that these …individuals, his regime, would be held accountable.”
He added: “Yes, in the sense that we made the argument that he was part of a regime that was going nowhere.”
When pressed on whether Feltman made the argument directly, Toner replied: “I believe Assistant Secretary Feltman said that.”
Although defecting does not guarantee that Kussa will avoid being prosecuted by the ICC, his willingness to provide useful intelligence to the UN-authorized forces will no doubt make him a lower-priority suspect. The OTP has limited resources and can only prosecute a small number of suspects in any given situation; why prosecute someone who did the right thing and turned on Gaddafi? Indeed, if enough officials followed in Kussa’s footsteps, Gaddafi would have to fight to the death all by himself.