An Exile for Peace Deal for Gadaffi?
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.