An Exile for Peace Deal for Gadaffi?

by Michael Scharf

It is a great pleasure to be invited to be a guest blogger on Opinio Juris for the next few weeks. Please stay tuned for my upcoming blogs about Somali piracy and the Hosni Mubarak trial later in the week. For my first blog, I want to weigh in on the provocative question of whether the UN Security Council should consider an exile-for peace deal for Libyan leader Muammar Gadaffi.

Mark Kersten recently posted an excellent essay on Opinio Juris on this question.  See:   http://opiniojuris.org/2011/07/08/mark-kersten-on-peace-vs-justice-in-libya/  And in the last few days, the New York Times has published Op Eds by Mark Ellis, Executive Director of the International Bar Association, and Richard Dicker, Director of the International Justice Program at Human Rights Watch, criticizing Britain’s Foreign Secretary, William Hague, for raising the possibility of such a deal in a recent press conference.  See Mark Ellis, Peace for All or Justice for One? New York Times, August 11, 2011, http://www.nytimes.com/2011/08/12/opinion/12iht-edellis12.html?_r=1&emc=eta1 .  Richard Dicker, Handing Qaddafi a Get Out of Jail Free Card, New York Times, August 1, 2011. http://www.nytimes.com/2011/08/01/opinion/01iht-eddicker01.html

The UN Security Council referred the situation of Libya to the International Criminal Court (ICC) on 26 February 2011, and the ICC subsequently confirmed the indictment and issued an arrest warrant for Gadaffi for committing crimes against humanity against civilians in the course of the ongoing civil war in Libya. http://opiniojuris.org/2011/02/27/security-council-refers-the-situation-in-libya-to-the-icc/   Messrs Ellis and Dicker make a strong case that an exile-for-peace deal would seriously set back the cause of international justice and peace in the region.

I have previously published my take on this issue in the context of the African Union’s request that the Security Council order the ICC to defer its case against Sudanese President al-Bashir.  See: http://www.jstor.org/stable/20695894

As I explain in that piece, which was published in International Legal Materials, Article 16 of the ICC Statute provides that the Security Council can order the Court to defer proceedings in a case for a year (renewable) in the interests of international peace and security. Most commentators view Article 16 as an all-or-nothing option, but its use can be much more nuanced, with detailed conditions and benchmarks imposed by the Security Council as part of the deferral resolution.

The Security Council has never before adopted an Article 16 deferral resolution, so this is unexplored territory for international criminal law. While I completely agree with the concerns so well articulated by Mark Ellis and Richard Dicker, I could envision a situation where the UN Security Council imposes a number of specific conditions on Gaddafi as part of such a resolution, and that the deferral would be immediately revocable if Gaddafi violated those conditions. The same Security Council resolution could conditionally authorize use of force to apprehend Gadaffi and give NATO the mandate to do so if he does not accept the deal and comply with the conditions within a set number of days.

Like Saddam Hussein, who was offered exile in Bahrain on the eve of the 2003 invasion, Gadaffi is probably psychologically incapable of agreeing to relinquish power. So, the result of such a Security Council Resolution would be greater international pressure on Gadaffi to step down and an expanded mandate for the NATO forces to bring him to justice. If Gadaffi did agree to the deal, most likely, as in the case of Charles Taylor, he would very quickly violate the conditions of his exile and find himself facing international justice.

I point this out not as an advocate of exile for peace deals. In fact, I’ve been characterized as extolling a Kantian “justice though the heavens may fall” approach in my writings. But I haven’t seen any one publicly explaining how an exile for peace deal might be structured and I wanted to make sure Opinio Juris’ readers will have a better grasp of the situation if such a deal is made. As I understand it, the purpose of this Blog is to engender scholarly discussion and debate on the most important international law issues of the day. I hope you will weigh in with your thoughts and comments on this controversial question.

http://opiniojuris.org/2011/08/17/an-exile-for-peace-deal-for-gadaffi/

4 Responses

  1. Hi, Michael;

    Some interesting thoughts there, but I have a few minor points.

    In the first part, the Security Council has used ICC Art 16 previously; in fact they’ve used it twice, though perhaps not as it was originally intended (see further, e.g., Schabas, An Introduction to the International Criminal Court (3rd edn, 2007), 30 – 1). In SC Res 1422 (2002) and SC Res 1483 (2003), the Security Council deferred in advance prosecutions by the ICC with respect to ‘current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to an United Nations established and authorized operation’. In effect, this was one of the two large efforts by the US to block the operation of the court, the other of course being the highly controversial ICC Art 98(2) agreements, and was dropped in the wake of Abu Ghraib. You are certainly correct, however, in that this would be the first time that the power was used for its intended purpose.

    The repeated nature of these resolutions more substantially highlights the difficulties with using ICC Art 16 to establish the status quo, however, namely the fact that any such resolution must be renewed annually. Were I Qaddafi, could I really rely on all five of the permanent members not to veto the renewal? Or would I consider the idea of a perpetual exile based on such a model risky at best? This is especially the case if one member feels strongly that Qaddafi has violated the conditions of his ‘suspended sentence’.

    In any case, I am not sure there is any other option. Prosecutor Moreno Ocampo, for better or worse, has the same Kantian mindset that you yourself have been accused of; as was shown by his actions towards the Lord’s Resistance Army in Uganda and his refusal to revoke arrest warrants in respect of that situation, it looks as though he sees the interests of peace and the interests of justice as quite seperate in nature. But as I mentioned, any status quo dependent on the continual renewal of ICC Art 16 resolutions would not be completely stable.

  2. “Like Saddam Hussein, who was offered exile in Bahrain on the eve of the 2003 invasion, Gadaffi is probably psychologically incapable of agreeing to relinquish power.”

    I was under the impression that Saddam asked for exile and $1 Billion and this was discussed by Zapata with Bush but Bush rejected the idea.  Bahrain’s proposal to Saddam of an exile just before the invasion is duly noted. 

    The conditional exile with likely violation leading to prosecution is an interesting twist if Gaddhafi calculcates in a manner different from the offeror.  Gaddhafi bets he will comply with the conditions and the international community bets he will not comply with the conditions.

    Best,
    Ben

  3. Exile-for peace is a disgusting concept, but as Mark Freeman stated, people may be repulsed by impunity but their “repulsion for war and tyranny is greater”.

  4. Professor Scharf,

    Thank you for the phenomenal synopsis of the situation. I’ve been curious myself about how such a deal would be structured. I agree about the psyche of Gaddafi leaving him unable to accept such a deal, making any possible deal just a method for ramping up pressure.

    My question is, with this in mind, what message do you believe such an offer would send to other violent despots, in particular Assad? It seems like a rock and hard place scenario where on one hand, without such a deal Assad believes that once he hits a point (that he has probably already reached) there is no coming back and there is no disincentive to further brutality, but on the other hand, if a deal is offered, it may incentivize brutality to expedite the international community’s demand for peace at all costs.

    I know it’s not strictly legal, but I’d be very curious to know what you feel the best course of action is and what it would say to other beleaguered despots.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.