Threat of Prosecution Plays a Role in Libyan Defection

by Kevin Jon Heller

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.

5 Responses

  1. What are your thoughts on the reports that there may be a willingness to accept that Gadaffi goes into exile in a non-state party of the ICC ?

    Clearly, bringing an end to the violence is the highest priority at the moment, and in all reality regardless of whether he seeks exile or not, the chances of seeing Gadaffi before the pre-trial chambers are pretty slim. However, having appeared to unanimously endorse the ICC and what it stands for in SCR 1970 in such high publicity, and then, with almost equally high publicity make statements to that seem to explicitly undermine it’s efforts, seems to convey a pretty unashamedly cynical attitude towards I.Crim.J.
    This is not to say I think that the ICC referral was necessarily an appropriate means to bring an end to the violence the Gadaffi regime was inflicting on the Libyan people, and therefore my problem lies not with the ICC, and more with the SC’s view that a referral might be an appropriate means to discharge its duties. But, having done so, shouldn’t members of the SC – at least publicly – particularly given that a large part of I.Crim.J. centres upon norm projection, continue to uphold commitment to accountability, even if behind the scenes they may be negotiating otherwise?

  2. I find it interesting that, despite the impassioned insistence of many many writers in this (ICL) space recently that the by far most important goal of the entire ICL project/regime ought to be the ending of “impunity” for human rights violators/crimes against humanity committers; despite their impassioned insistence that, for example, politically negotiated amnesties and the benefits they bring (peace) cannot as a matter of law and morals override the rights of the victims and their families to justice (punishment of the individual bad actors); that in this case it is being suggested that the ICC can and should make some sort of deal with this person, even if that deal is just a reduction in charges or a “lower priority” (whatever that means).  If this individual would be guilty of crimes against humanity/war crimes/human rights violations in the absence of his defection, surely that defection does not undo those actions.  I think what many ICL regime proponents really desire above all is that the ICC as an institution be further entrenched and made more visible by any means necessary.  “Come to us,” the ICC says, “and we’ll cut a deal, reduce your charges etc etc.”  An actual politically-negotiated reduction of charges in an amnesty context is more and more being declared illegitimate, yet the ICC can deal in such tradeoffs and that is considered a good thing?  Something doesn’t add up.

  3. That, of course, is not what I’m arguing at all.  I’m simply pointing out that, given the limits on the number of people the ICC can prosecute, suspects would be wise to minimize their responsibility for international crimes.  No “deal” or “politically-negotiated reduction of charges” or “amnesty” is necessary for them to avoid prosecution; it’s a numbers game.

  4. Your exact words were: “his willingness to provide useful intelligence to the UN-authorized forces will no doubt make him a lower-priority suspect.”  You may not be endorsing this possible behavior but neither are you complaining about it.  Rather, I suspect it appears to you a completely non-controversial utilitarian feature of prosecutorial discretion, which it of course is.  I simply find it highly inconsistent with recent pronouncements by writers in international law to the effect that the proper mission of ICL is the ending of “impunity” and that any trading off of impunity for other benefits (“willingness to provide useful intelligence to the UN”) is per se immoral and illegal.  In fact, I suspect that, had this Libyan fled to NATO, say, or the USA, and someone else suggested that his prosecution for past international law crimes he may have committed might be conditioned by useful intelligence he provided to NATO or the CIA, your reaction to that would not have been so accommodating.

  5. In terms of “doing the right thing”, and to pursue further the comparison with Sierra Leone, what do you think of the Sesay precedent, who was a key collaborator in the UN efforts to disarm and negotiate a sustainable solution? He was still prosecuted, and got no credit for his role as interim leader of the RUF, even as a mitigating circumstance (see puzzling reasoning of sentencing judgment, p77 and Appeals Judgment at 446).

    In addition, as for the argument that the ICC would have bigger fish to fry, couldn’t one also argue that if he were the only fish to fry, then he would be the one to be tried, irrespective of any help he provided?

    QET, I think you’re approaching this from too radical a perspective. All legal systems have more or less flexible possibilities for plea bargaining and other negotiations. I know the nature of the crimes makes people wary of such practice in international criminal courts (see Plavsic), but one cannot deny that this might have some utility in certain cases, without jeopardizing the ideals of the system as a whole. Nothing is that simple.

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