Mark Kersten on Peace vs. Justice in Libya

by Kevin Jon Heller

The following is a guest-post by Mark Kersten.  Mark is a PhD candidate in International Relations at the London School of Economics and author of the (excellent) blog Justice in Conflict. His research examines the nexus of conflict resolution and the pursuit of international criminal justice.

Trying to Get to the Bottom of the “Peace versus Justice” Debate in Libya

There are valid concerns and tensions which arise from pursuing justice in the midst of ongoing and unresolved conflict. The development of international criminal law has seen the transformation of tribunals from being ex post courts which adjudicate crimes after the resolution of conflict to ex ante courts. Ex ante courts, as Mahnoush Arsanjani and Michael Weisman have explained, “are established before an international security problem has been resolved or even manifested itself…[which] may create conflicting pressures on both the tribunals and the agencies and actors responsible for resolving the security problem.”

Virtually every argument in the peace-justice debate is logical, intuitive and, on some level, persuasive. The problem, however, is that not only are the arguments in the peace-justice debate contradictory; rather than reflecting realities on the ground or tangible evidence, they often reflect and privilege the convictions of individuals with particular political, moral and legal persuasions. Individuals on either side rarely examine evidence of particular cases, preferring instead to say that justice is absolutely necessary or absolutely problematic across contexts. Trying to find someone who believes pursuing international criminal justice helps in some cases and hinders in others would take a very long time.

In Libya, there has been no shortage of “peace versus justice” talk, most of it centring around whether the ICC’s investigations into and arrest warrants of Gaddafi, his son Saif and the Libyan head of intelligence, Abdullah al-Sanussi,  eliminates the possibility that Gaddafi steps down from power. The majority of those who have contributed to the debate suggest that the goal of justice is undermining or complicating efforts to negotiate a peace settlement to the conflict.

As I have elaborated elsewhere, there are at least six possible courses of action in Libya: negotiate a power-sharing agreement between Gaddafi and the rebels; negotiate the exile/asylum of Gaddafi and family and design a power-sharing agreement between the rebels and pro-Gaddafi forces; declare Gaddafi a legitimate military target; intervene with “boots on the ground” and take over Libya; deploy a special forces mission which detains Gaddafi and subsequently brings him to the Hague; continue as now with no-fly zone and support for rebels; or withdraw all external support. Each of these options have shortcomings and illustrate that there really is no ideal solution to the crisis in Libya.

The intervention of the ICC into Libya would, theoretically, have its biggest impact only on the first two options: negotiating an agreement with Gaddafi or negotiating an agreement which includes Gaddafi going into exile or receiving asylum. It could also, however, have an impact on the potential success of the military engagement which, it could be argued, is seeking to create a “space for peace”.

It is at least theoretically possible that Gaddafi would re-entrench in order to fight to the end as a result of the ICC warrant against him. Again, it isn’t illogical. Indeed, the act of shaming and embarrassing violent individuals has been persuasively demonstrated to be a key source of continued violent behaviour. However, not all individuals are persuaded to resort to violence for the same reasons and while Gaddafi may be angered with the ICC warrant against him, it would seem more logical that he is concerned with his own survival.

Second, Gaddafi has maintained, over and over, that he will stay and fight his enemies in Libya until he dies. But is this the result of the ICC’s involvement? It seems exponentially more likely that Gaddafi would be preoccupied with winning the war or gaining the upper hand in the conflict in order to achieve favourable terms of negotiation or to stop NATO bombing.

Ultimately, it may be that the ICC arrest warrant has had much less effect on Gaddafi than both advocates and critics of the Court have been led to think it has. It has not deterred Gaddafi from continuing to commit crimes but neither is it obvious that it fuels his killing spree. Indeed, it would seem just as logical that Gaddafi would be focussed on the threat to his life from NATO bombing and rebel advances rather than the threat of spending a few years in the Hague as a result of the ICC arrest warrants?

As it stands, we have literally zero evidence that the ICC warrants have determined or persuaded his actions. Gaddafi has not said, for example: “If it wasn’t for the ICC warrant, I would leave” or “A condition of peace is that the ICC drop its arrest warrant against me.” Even if he had made such claims, it would be impossible to ascertain whether they are meant sincerely or as a matter of rhetoric.

Instead, we know two things: first, the rebels won’t negotiate peace if Gaddafi remains in power. While the rebel’s National Transitional Council may accept Gaddafi living in Libya, they have been adamant that he leaves power, having rejected an African Union brokered proposal which included direct negotiations with Gaddafi. In other words, they refuse to negotiate a power-sharing agreement if Gaddafi is involved. The ICC cannot have a negative effect on a peace negotiation if the parties aren’t interested in negotiating in the first place.

By and large, the idea that leaders react violently to arrest warrants is a presumption of their rationality and psychology. In a few cases we have evidence that leaders do retaliate, such as Bashir expelling a dozen NGOs in Darfur in the wake of the ICC arrest warrant issued against him. But in many cases, most of the evidence is circumstantial and the presumptions remain just that: presumptions. In the case of Gaddafi, Human Right’s Watch director, Richard Dicker, astutely notes: that “it beggars belief that a dictator who has gripped power for over forty years would be frozen in place by this arrest warrant.”

For those who argue that the ICC has undermined peace in Libya, it is worth asking: if the ICC were to close up shop tomorrow, would peace be guaranteed by NATO forces bombing Tripoli and rebel forces advancing on the capital? Would that facilitate Gaddafi going into exile? Probably not. Had Gaddafi had any inclination to go into exile, he could have accepted invitations under pressure from governments, including the US, to retire in Uganda or perhaps even Venezuela. No, if the ICC had never intervened or if it stopped its work in Libya, Gaddafi would still be in power, the rebels would still be fighting to overthrow him, and NATO jets would still be dropping missiles.

Could the ICC be straining the coalition of militarily and politically engaged states in Libya and thus undermine its potential success in “protecting civilians” and creating a “space for peace”? After three months of engagement, there are obvious tensions among those who either supported the military intervention in Libya or stepped aside to allow Security Council Resolution 1973 to pass. Most precariously, regional Arab state support which was critical in legitimizing the intervention is dwindling. But, again, there is no evidence that the strains have been caused by the ICC. Instead, the killing of civilians by NATO bombs, the opaque and confused status of Gaddafi as a military target, and the taking-sides of NATO states in the conflict have fuelled the divisions. Arab states, on the contrary, have been increasingly supportive of the ICC. A regional conference in Doha was recently held where numerous Arab nations expressed support for the Court and their aspirations to join in the future. Recently, Tunisia became the fourth Arab state member to join the ICC.

An increasing problem facing the ICC is the outsourcing of responsibility for peace to the Court. Those who argue against the Court’s intervention in Libya virtually never acknowledge that Libya was referred to the ICC by the UN Security Council. In order to appease the concerns of Security Council states who felt that peace and justice in Libya should be achieved with a “calibrated approach”, the Council’s referral included a reference to a possible deferral of the investigation or prosecution of individuals in Libya under Article 16 of the Rome Statute. The question thus arises: if pursuing justice in Libya negatively affects the prospects for peace, should criticism for the failure of peace, the most political of processes, not be laid at the feet of the political institution responsible for international peace and security – the UN Security Council?

Based on the available evidence, this post has highlighted three key issues which undermine claims that the ICC has hindered the prospects for peace in Libya. First, the ICC’s intervention cannot affect the possible negotiation of a power-sharing agreement in Libya; the rebels simply have no interest in negotiating if Gaddafi is at the other end of the proverbial negotiating table. Second, the ICC has not affected Gaddafi’s options to receive exile or asylum. To date he has rejected all offers and, by all accounts, is willing to fight until he is captured or killed. Third, critics of the Court apportion blame on the ICC for ruining the political conditions necessary to negotiate peace but, by doing so, allow the Security Council, which is responsible for the Court’s role in Libya, to get off scot-free.

There are two final issues that lie at the center of the peace-justice debate that need to be tackled if there is any hope to move beyond what many now recognize as a much too simplistic dilemma.

First, there is a need to re-assess the expectations of the ICC. Whether advocates of international criminal justice like it or not, for the foreseeable future, the ICC will be judged by its ability to complement conflict resolution efforts. In other words, it will be judged on the basis of contributing to peace. Many of the Court’s most vehement champions themselves have created this expectation by basking in the rhetoric that there is “no peace without justice”. It is worth considering whether the debate has emerged because, for better or worse, advocates of pursuing justice in conflict desired the ICC to have a significant impact on peace. Regardless, these expectations may simply be impossible to meet.

Second, it is important to recognize that the language associated with the “peace versus justice” dilemma rather than the facts, has become part of the daily grind amongst the analysts and observers of conflicts that involve the ICC. Drawing on the intuitive logic of the arguments, for better or worse, this language now acts as a lens with which observers examine the pursuit of justice in conflict. However, it is worth considering whether this language truly represents reality or whether it has simply become the best political defense and prosecution of the ICC’s work. Indeed, arguments of the Court’s negative effects on peace may be replacing claims that the ICC is a neo-colonial project as the primary rhetorical weapon against it.

This post is not intended to defend the ICC and its effects on the resolution of violent political conflicts. There is still much to be understood about the relationship between peace and justice. Many of the claims on both sides of the peace-justice debate are legitimate and need further scrutiny. There are real challenges to achieving international criminal justice and a cessation of violence at the same time. However, as the case of Libya illustrates, if the peace-justice debate is now a permanent feature of how we think about the tensions between pursing justice and conflict resolution, we should probably challenge the often simplistic, sometimes groundless, and usually ill-considered assumptions that are made in favour of real evidence, however intuitive they may be.

http://opiniojuris.org/2011/07/08/mark-kersten-on-peace-vs-justice-in-libya/

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  1. [...] over at the widely-read and respected international law blog, Opinio Juris, entitled “Trying to Get to the Bottom of the “Peace versus Justice” Debate in Libya” (click here to read it). The post is an attempt to measure various opinions of the impact of [...]