- By Robert ZeligerRobert Zeliger is News Editor of Foreign Policy.
Today’s news that Muammar al-Qaddafi was indicted by the International Criminal Court on charges he ordered attacks against civilians in the early days of the Libya uprising was greeted by celebratory gunfire in the rebel-controlled east, but it might be a bit early to celebrate.
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. Since then, he’s traveled to Kenya, Eritrea, Egypt, Libya, Qatar, Iran, and was supposed to visit China this week, though his plane was mysteriously diverted.
Likewise, it’s doubtful that Qaddafi will face the wrath of the international justice system — as long as he clings to power, says Max Fisher at the Atlantic.
"In practice, an ICC arrest warrant can be little more than a lifelong ban against traveling to certain countries," wrote Fisher.
In fact, argues Simon Tisdall in the Guardian, the warrant could make the international community’s goal of removing him quickly even harder to attain. Qaddafi is more likely to feel he has nothing left to lose and must stay and fight until the bitter end — that’s bad news for the United States and its allies since it means Qaddafi is less likely to accept a negotiated solution. Though still possible, it’s certainly a more difficult prospect today since it means there are fewer countries that would be willing to take him in — not to mention his son Saif al-Islam, who was also named in the indictment.
As usual, there is a large dose of unreality and wishful thinking about all this. The ICC’s action could easily backfire, as have other aspects of Libyan policy. The court’s personal targeting of Gaddafi will revive questions about the wisdom of the Anglo-French-US approach (distinct from that of NATO) of making his removal from power the key measure of success in Libya. It will also fuel claims that the ICC is only interested in pursuing African leaders, as in Sudan and Kenya, and that the US in particular (which is not a party to the ICC) is guilty of double standards.
The Christian Science Monitor’s Howard LaFranchi reported that "some US officials have acknowledged privately that an indictment of Qaddafi would very likely complicate the diplomatic environment and render more remote a solution that includes Qaddafi departing for another country."
Publicly, the United States has given the thumbs up to today’s news. State Department spokeswoman Victoria Nuland said the United States "believes that the decision to refer the case to the ICC was the right decision; that the ICC has spoken now about the need for justice and accountability. With regard to whether this hurts or helps, it doesn’t change the fact that Gaddafi’s got to take the message that it’s time to go."
Human Rights Watch issued a similar statement.
"Muammar Gaddafi already made clear he intended to stay until the bitter end before the ICC process was set in motion, and his son’s February vow to ‘live and die in Libya’ speaks for itself,’" said the group’s international justice director, Richard Dicker, in a statement today. "It beggars belief that a dictator who has gripped power for over 40 years would be frozen in place by this arrest warrant."
Ultimately, the indictment could wind up being "another bargaining chip in any negotiations over ending Libya’s civil war," wrote Fisher. It would mean having to find him a home where he will be free from the threat of arrest — say Venezuela or South Africa.
"That’s a good thing," Fisher said. "As fighting worsens and civil society degrades, anything that makes peace more likely is essential — but it’s not quite international justice in the legal sense of the term."