Advancing a Free Society
The International Criminal Court (ICC) has now issued an arrest warrant – the equivalent of an indictment in the U.S. system — against Libyan strongman Muammar Qaddafi for crimes against humanity in his efforts to suppress the rebellion that threatens to topple his appalling regime. The Court also issued warrants for his son Saif, and for the head of his secret police.
It’s the second time the ICC has issued a warrant for a sitting head of state. The first was Omar al-Bashir of Sudan, for genocide in Darfur.
By themselves, the warrants won’t change much in Libya, where the conflict rages on. The ICC has no marshal service to dispatch to haul suspects in. The Bashir warrant was issued in 2009, and he remains firmly ensconced in Khartoum. The pursuit of legal accountability for mass atrocities across international borders rarely moves quickly. Ratko Mladic, wanted by the International Criminal Tribunal for the former Yugoslavia (ICTY) on charges of genocide against ethnic Bosnians in Serbia, was on the loose for more than 15 years before his arrest this May.
Nevertheless, the Court’s move against Qaddafi and his inner circle is noteworthy for several reasons. First, the prosecutor opened his investigation on the basis of a referral from the United Nations Security Council. Libya is not a member of the ICC, but the Council can ask the Court to look into a particular situation, and this is the second time it has done so. Darfur was the first, in 2005, with the United States abstaining. This time, the United States supported the resolution, UNSC 1970. The Bush administration’s abstention marked a turning point in the United States’ rocky relations with the ICC. The Obama administration’s support for the Libya referral is confirmation that a precedent has been set: Even though the United States is not a member of the Court and is unlikely to become one any time soon, the U.S. government accepts the value of the ICC and will cooperate with the Court in its efforts to bring to justice perpetrators of the world’s worst crimes. There is unlikely to be any sentiment for the creation of new special international tribunals like ICTY (which began operations under Security Council auspices prior to the creation of the ICC); the world now has a functional criminal court to serve as a backstop, and it’s one the United States can live with.
Second, the ICC prosecutor, Luis Moreno-Ocampo, moved with unprecedented speed in seeking approval for the warrant against Qaddafi & Co. The Bashir investigation took years to get to the point of an arrest warrant. Qaddafi’s case took mere weeks. The arrest warrant comes as the war for control of Libya is still unfolding, rather than, as in the case of Bashir, after the worst of the Darfur atrocities had already taken place. Moreno-Ocampo has been subject to criticism for inefficiency and worse. This time, he has shown his office can act quickly and effectively.
Third, the Qaddafi indictment is a reminder that a legal mechanism for providing accountability is not the same thing as accountability. Qaddafi remains at large and determined to hold onto power, and it will take his defeat or internal overthrow before there is any possibility of trying him for crimes against humanity. There is no substitute internationally for the power to bring about the downfall of his or any other murderous regime. No court has such power, and political leaders must remember that referring a case to the ICC, appropriate as it may be, is not by itself going to lead to a satisfactory resolution of political conflict on the scale of Libya or Darfur.