THE International Criminal Court did the right thing by issuing arrest warrants for Libyan leader Muammar Qaddafi, his son Saif Al-Islam Qaddafi, and chief of military intelligence Abdualla Al-Senussi for "crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces."
Back on February 26, the United Nations Security Council voted unanimously in Resolution 1970 to refer the situation in Libya to the ICC to investigate allegations of gross abuses. In concluding his review in mid-May, ICC chief prosecutor Luis Moreno-Ocampo announced that he had collected evidence that Qaddafi had "personally ordered attacks on unarmed Libyan civilians…. His forces attacked Libyan civilians in their homes and in public spaces, shot demonstrators with live ammunition, used heavy weaponry against participants in funeral processions, and placed snipers to kill those leaving mosques after prayers.”
Based on those findings, Ocampo then undertook the deliberate process of compiling and presenting a sufficient evidentiary base to the ICC judges who ultimately issued the arrest warrants on June 28.
This type of case is why 110 countries signed and ratified the ICC -- as an instrument to help mitigate international crimes by holding individuals accountable for genocide, war crimes and crimes against humanity. And, in this case the system has worked so far: credible evidence of crimes followed by a unanimous United Nations Security Council resolution, followed by indictment and arrest warrants.
Still, the ICC’s actions have been met with a high degree of skepticism and disdain. Many argue that the indictment is dangerous because it makes diplomatic efforts to find Qaddafi a golden parachute and leaves him no choice but to fight until the death. Others add that the ICC’s efforts are all the more reckless because it has no capacity to actually make the arrest. On June 2, the African Union issued a statement that the ICC action "seriously complicates the efforts aimed at finding a negotiated political settlement to the crisis in Libya” and announced that its members would not to take any action in support of the warrants. Many AU leaders have also expressed frustration that the ICC seems to be picking on African states when crimes are being committed in Syria, Gaza, and elsewhere. Of course, this probably was to be expected from an organization in which a majority of its members are non-democratic regimes and hostile to the expansion of international norms of sovereignty to include the conception of responsibility and accountability.
Much of the punditry in the United States and in Europe also shares similar skepticism and disdain. For example, Robert Zeiliger writing in Foreign Policy.com notes, “ICC indictments are notoriously difficult to follow through on, given that the court relies on individual states to make the arrest -- and many states have not ratified the treaty establishing the court and do not recognize its jurisdiction -- including Libya. Ask Sudan's leader, Omar al-Bashir, who was indicted in 2009 for war crimes committed during the conflict in Darfur.”
Yet, this set of criticism is all very curious. The ICC has only been in existence for nine years. It has opened investigations in a total of nine conflict situations and has issued indictments against a total of 26 individuals – including the three most recent from Libya. More than half of those indicted have appeared before the court. Five of the individuals that were indicted were arrested while nine others have appeared voluntarily. And, to be sure, Bashir and nine other remain at large, (the 26th died while a fugitive).
Yet, given such a young history, it’s pretty hard to make the claim that ICC indictments “are notoriously difficult” to implement or that the record suggests the indictments hinder resolutions of the conflicts. We heard many of these same arguments about the creation and the work of the International Criminal Tribunal on Yugoslavia. Yet, if we examine the ICTY’s record – now in its sixteenth year of operation (in a non-African context by the way) – it has issued a total 161 indictments. To date, only one, Goran Hadzic remains at large. All of the most notorious war criminals were indicted, arrested and prosecuted. For all of the faults and criticisms of the ICTY – its expense, its slow and deliberate nature, its relatively weak sentencing, and such -- no one at the outset of the ICTY’s mandate that began in 1993 believed it possible that we would see the most notorious war criminals, Serbian President Slobodan Milosevic, Bosnian Serb military and political leaders Ratko Mladic and Radovan Karadzic, as well as the radical Serb nationalist Vojislav Seselj all stand before judges in the Hague.
In each case, indictments contributed to removing all of these individuals from power and influence in the Balkans.
In full disclosure, I was one of those “pundits” in 1999 who questioned the wisdom of the ICTY’s indictment of Slobodan Milosevic in the middle of the Kosovo air war in 1999. I told the New York Times the day of the indictment, “We've already bombed his house. We've already bombed his wife's business. If that didn't wound him or change his thinking, I don't think an indictment will."
Less than a month-and-half later, Milosevic capitulated and withdrew Serb forces from Kosovo. And, while Milosevic and many of those of us who watched the Balkans closely scoffed at the indictment, we now know that it clearly altered his strategic calculations as well as those around him. Within a year-and-a half, most Serbs concluded that with an indicted war criminal as their leader, there was no future for Serbia and they overthrew him. Contrary to the initial claims that the indictment would make things worse, it actually contributed to Milosevic’s demise – something that not a single Balkans analyst saw coming.
In many ways, the ICC’s indictment of Qaddafi is more similar to the case against Milosevic than it is to Bashir. In Bashir’s case, much of the world disagreed on the magnitude of the crimes committed in Darfur – only the U.S. and a handful of others labeled the events there genocide and the United Nations has long been divided on how to proceed on Sudan and Darfur. Conversely, in Libya, the Untied Nations Security Council has passed two strongly worded resolutions and much of the world now is in agreement that Qaddafi needs to go – even a number of AU leaders are privately acknowledging this according to a number of press reports.
The ICC indictment further isolates Qaddafi and will make it very difficult for the country to recover if he stays in power. This will create powerful incentives even within his own circles to eventually abandon him. Whether or not this outcome will happen remains to be seen.
But, the ICC did the right thing to investigate, indict, and issue the arrest warrants against the Qaddafi’s and Al-Senussi. It was created specifically for this purpose and, though international criminal prosecutions are still in their infancy, the record of the ICTY and its sister tribunal in Rwanda suggests that, despite their faults, they have contributed positively to increasing the arsenal of international conflict management capabilities. And, in this sense, one of the AU’s criticisms of the ICC is on target – it should also be investigating crimes beyond the continent of Africa. Syria, Bahrain, and Yemen should be next.