Did You Hear? But for the ICC, the War in Libya Would Be Over

by Kevin Jon Heller

This according to the Washington Post‘s Jackson Diehl, in Screed Number 1345 about how the evil ICC is preventing peace on earth and goodwill toward men:

Libyans are stuck in a civil war in large part because of Gaddafi’s international prosecution.

Diehl, of course, offers precisely zero evidence in defence of this ridiculously stupid thesis.  Even better, his own column refutes the idea that the possibility of prosecution prevents dictators from stepping down, given that he devotes one paragraph of the column to criticizing Egypt’s plans to prosecute Mubarak for his crimes against the Egyptian people.  Shouldn’t the threat of prosecution have given Mubarak an incentive to fight to the death?  Why would he ever have stepped down if he knew he might face the death penalty?  Was he really so stupid that he believed a new regime would never prosecute him?

Or is it that the threat of prosecution actually plays almost no role in a dictator’s decision to give up power?

I don’t expect very much from the Washington Post.  But I do expect better from David Bosco at the Multilateralist, who unfortunately drinks a bit too much of Diehl’s kool-aid:

Diehl’s broad argument in favor of impunity and exile has all sorts of holes, but he may be right that, in this case, the ICC has created perverse incentives. Qaddafi may have clung to power with or without the threat of a trial in The Hague, but that prospect no doubt makes leaving power that much less attractive. It’s also hard to make the case that the threat of ICC indictment has deterred Qaddafi and his commanders from committing atrocities (though I suppose one could contend that the fighting would have been even more brutal absent the prying eye of The Hague).

It’s a bit disconcerting that international-justice advocates rarely acknowledge the possible downsides to international judicial intervention or grapple with the evidence that cuts against their predictions. In sectors of the human rights community, there’s a messianic faith in the value of international justice. And that’s fine if the argument is essentially one based on principle: Justice is right; impunity is wrong; consequences be damned. But the justice movement makes the argument both on principled grounds and on consequentialist grounds. It has an obligation to honestly confront some of the possible negative consequences.

Note the disconnect between Bosco’s claims and his challenge to international-justice advocates.  He faults such advocates for failing to “grapple with the evidence that cuts against their predictions” — but, like Diehl, he offers no such evidence, just speculation about the ICC making it “much less attractive” for Gaddafi to step down and about other — unnamed — “possible negative consequences” of international criminal justice.  At the same time, Bosco is perfectly happy himself to avoid grappling with possible positive consequences, such as his own possibility that the fighting would have been worse in Libya but for the ICC investigation.

I have no idea whether Gaddafi’s atrocities would be worse without the ICC.  But I do know that the ICC’s investigation has had some actual positive consequences, in contrast to Bosco’s possible negative ones.  I’ll give Juan Cole the last word:

Libyan Oil Minister Shukri Ghanem has defected from the Qaddafi regime and fled to Tunisia.

This defection is a big deal. Ghanem had been at OPEC when Libya was under economic sanctions, and his return to Libya as prime minister and head of the ruling party in 2003 was intended to signal Muammar Qaddafi’s return to respectability in the international community. Ghanem became the face of the reformed Libya, which had given up its dabbling in chemical and other weapons and was willing to privatize its state sector industries and do big deals with Western oil companies. He staunchly defended Qaddafi, going so far as to, in a 2004 BBC interview, deny the regime’s responsibility for the Lockerbie bombing. Ghanem late became head of the powerful oil ministry. If Qaddafi cannot retain Ghanem, he cannot retain his technocratic elite in general. It is another sign that the regime is collapsing.

The defection is likely in part a response to the International Criminal Court indictment of Qaddafi and his eldest son. Persons who now continue to be right hand men of that regime are themselves in danger of prosecution for war crimes. There are fewer and fewer places regime figures could flee the reach of the ICC. Since Qaddafi has deeply angered Saudi Arabia, even that famed refuge for deposed heads of state is out of the question.

Despite the cavilling about the ICC indictment, in fact it is likely to hasten the end of the regime by signalling to the Tripoli elite that they are increasingly likely to face prosecution and sanctions, encouraging them to throw the Qaddafis under the bus. If Tripoli could quickly move to expel the Qaddafis (I hear Ecuador has no extradition), and then the Western elites with no massacres on their hands could sue to join the Benghazi leaders in a government of national unity, the fighting could end quickly.

The Transitional National Council is already moving to form such a national government, bringing delegates from around the country. Tripoli’s accession would be welcomed by the TNC, which already has many Qaddafi defectors in its ranks.

Damn that meddlesome ICC!

http://opiniojuris.org/2011/06/07/did-you-hear-but-for-the-icc-the-war-in-libya-would-be-over/

7 Responses

  1. I don’t feel confortable with what the alleged ”actual positive consequences” of the ICC investigations should be. Shall we understand that stepping out may prevent prosecution for prior  conduct (which would obviously not be in compliance with the Statute) or that right hand men are stepping out due to their miscalculation, because they feel likely to escape prosecution (which would imply that the ICC has a credibility problem)? Perhaps we shouldn’t counter arguments based on negative impact of international prosecution on military operations with arguments … based on positive impact of international prosecution.          

  2. It seems to be de Waal’s old argument, newly dressed? Justice and prosecution are evil and will only lead to slaughter and mayhem, but humour the despots and bend thine recalcitrant neck, and everything will fine, because that is the way the world has always been ruled, and the meek shall inherit the Heavenly Kingdom, while Qadhafi and al-Bashir merely administrate the realm temporal.

    There are valid reasons to be critical of the OTP’s involvement in Libya (just read judge Hans-Peter Kaul’s earlier warning words in his dissenting opinions!), but not these reasons.

  3. Given the Glenn Greenwald piece about the Washington Post (Criminal Law is not for Political Elites) on June 4, 2011 I think Diehl is merely reflecting the koolaid at the Washington Post.  Here is the link http://www.salon.com/news/opinion/glenn_greenwald/2011/06/04/washpost

    Best,
    Ben

  4. Response…
    Yes, this is an old ploy of certain elites and their followers.  It is obvious that an increasing number of heads of state, former heads of state, other officials, other former officials are being prosecuted in international and domestic fora for their international criminal activity.  It is also increasingly obvious that impunity often leads to further criminal conduct and social violence.  However, we do live in a time when impunity is too rampant, especially within the United States.  Within the U.S., it is certainly not likely that there will be an increase in social violence because Obama refuses to comply with the constitutional command faithfully to execute the law and initiate prosecution of Bush, Cheney, Rice, Gonzales, et al., but future compliance with the rule of law is in jeopardy!

  5. I’m a bit confused as to why the positive consequences of the ICC indictment, “likely in part” according to the quoted article, are more certain or clear than the negative consequences which there is “zero evidence” for. Is this just a reflection that positive action (an affirmative resignation) is inherently more trustworthy as evidence than negative action (a refusal to resign)?

    At best, it seems like there’s not a lot of evidence in either direction at this point; Professor Cole’s comment seems just as much supposition with “zero evidence” backing it up, so the distinction Professor Heller is trying to draw here seems questionable at best.

  6. At least Ghanem is an actual person.  Diehl/Bosco point to absolutely nothing — just abstract speculation.

  7. I agree on balance with KJH’s argument, in substance, but Peter is exactly right on the form, and also as to the actual conclusions that can be drawn at this stage. Diehl/Bosco point by implication to every actual person who has not left.

    Relatedly, and very pertinent to the usefulness or lack thereof of the ICC, will it investigate Syrians?

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