The case for calling off the Tomahawks and bringing Muammar al-Qaddafi to The Hague.
- By David SchefferDavid Scheffer is visiting professor of International law at the Georgetown University Law Center and former ambassador at large for war crimes issues during the Clinton administration.
On June 27, the International Criminal Court (ICC) in The Hague handed down arrest warrants against Libya’s Muammar al-Qaddafi, his son and de facto prime minister Saif al-Islam, and his brother-in-law Abdullah al-Senussi, head of Libyan military intelligence. The news was mostly met with a shrug; the New York Times ran its story on the indictments on page A11.
Popular cynicism about the International Criminal Court and its importance to messy international conflicts like Libya is the easiest game in town, particularly if the town in question is Washington. The United States has steadfastly refused to join the court (whose member countries now number 116, including all NATO allies except Turkey), giving skeptics official license to throw grenades at the tribunal’s often-uphill struggles to investigate atrocity crimes, arrest indicted fugitives, and conduct politically sensitive and protracted trials under the terms of due process. Michael Rubin of the American Enterprise Institute told CNN, "The ICC’s arrest warrant symbolizes the dirty underside of international law. … [It] tells Qaddafi to fight to the death."
Why, then, should anyone bother with the ICC in a conflict where NATO’s military might, backing up a resilient rebel movement, surely will be the decisive factor in toppling a tiresome dictator? Because there’s more at stake here than Libya, or the fate of a single loathsome war criminal and his associates.
International judicial intervention — a term I introduced to Foreign Policy in an article of the same name 15 years ago — has succeeded in its plodding way at humbling and bringing to justice one tyrant after another, along with their partners in genocide, crimes against humanity, and massive war crimes. Yes, international justice takes time; indicted leaders threaten and bully and defy tribunals as a matter of course (even though the bravado rarely lasts); and there is always the risk that an international prosecutor might scrutinize one of your own.
But if international justice requires patience and some risk, it also holds more lasting rewards. Most of the surviving top leaders who orchestrated atrocities in the Balkans, Rwanda, and Sierra Leone in recent decades have been apprehended and brought to justice before international criminal tribunals — and, in the case of Cambodia and the Pol Pot regime, an internationalized domestic court that today is holding its own Nuremberg-style trial. Peace now prevails in all four of these places in large part because the really bad seeds have been removed and important historical lessons about justice and the rule of law have taken root, particularly among younger generations. The counterfactual that apprehending these criminals somehow places these societies at greater risk of dissolution, or that domestic legal systems will fill the void, has routinely been proved wrong. Serbian courts never found the will to prosecute Slobodan Milosevic, Radovan Karadzic, or Ratko Mladic, but the Hague Tribunal did. Sierra Leone’s judiciary remains on life support, and the prosecutions — including that of Liberian leader Charles Taylor — before the international Special Court for Sierra Leone have not resurrected the rebel armies in that country.
To be sure, the system doesn’t have a perfect record. Sudanese President Omar Hassan al-Bashir has been indicted on charges of genocide, crimes against humanity, and war crimes in Darfur but remains at large, ruling his country and traveling outside of it with flashes of impunity. Joseph Kony, the indicted commander in chief of Uganda’s murderous Lord’s Resistance Army, reportedly roams freely across several central African countries. But these failures must be seen in context. Four out of five indicted leaders from the Democratic Republic of the Congo now reside at the detention center in The Hague. Popular rebel leader Jean-Pierre Bemba Gombo, indicted for orchestrating mass rapes in the Central African Republic, is standing trial now. Three out of six indicted leaders from Sudan have faced the court, though they are from the rebel side of the Darfur conflict. All six indicted leaders from Kenya, charged with crimes against humanity during the violent aftermath of the 2007 election, have appeared voluntarily in The Hague and await confirmation of the charges against them by the judges. Ivory Coast’s former President Laurent Gbagbo is in domestic custody, and a future flight north to the land of tulips might await him. Most remarkably, the court has accomplished all of this without its own police force.
NATO, of course, could ignore all of this justice stuff and just keep bombing Tripoli; a Tomahawk missile is no doubt a more expedient means of dispatching Qaddafi and his cohorts than a drawn-out courtroom battle in The Hague. But if there’s one lesson to draw from the post-9/11 decade of conflict — defined as it has been by unilateral military action and an emphasis on force over law — it’s that in war the means determine the ends to a not-insignificant degree. Arrest warrants from international criminal tribunals can delegitimize tyrants before their own people and certainly before the international community; unilateral wars have, if anything, had the opposite effect.
The United States and its NATO allies are supposed to stand for the rule of law and, accordingly, for the criminal prosecution of those who violate it — and Barack Obama’s administration, while willing to embrace justice-by-summary-execution in the case of Osama bin Laden, has shown an interest in renewing this commitment. The administration has been supportive of the ICC’s investigations and indictments throughout Africa, and was instrumental in obtaining unanimous approval for U.N. Security Council Resolution 1970 on Feb. 26, which referred the Libya situation to the court in the first place. Libya presents an opportunity to close the book on the cowboy behavior of the post-9/11 era and re-embrace the rule of law in a unified fashion with America’s European and other allies throughout the world.
How might the United States and NATO go about restoring the right balance between the use of military force and the application of international justice in the admittedly hard case of Libya? For starters, the bombing runs on Qaddafi’s compound and other redoubts may need to end; the United States cannot express support for the court’s investigations and indictments and at the same time plot the indicted fugitives’ summary executions. With the assistance of the rebels, who already have volunteered to help arrest the Qaddafi gang, NATO special operations forces should be mobilized to deploy into Libya and arrest the three indicted war criminals, the sooner the better. The National Transitional Council based in Benghazi should grant NATO permission to enter Libyan territory for this purpose, thus neutralizing the expected sovereignty claims of the regime and its appeasers.
Taking this tack should be appealing to realists, among them the newfound converts to nonintervention in the Republican Party. Qaddafi is not precluded from still cutting a political deal to avoid a trip to The Hague, at least in the near term. When Prosecutor Luis Moreno-Ocampo announced on March 3 at the International Criminal Court that he was investigating Qaddafi and other Libyan leaders, he encouraged Qaddafi in particular to leave, which left the door wide open for them to negotiate safe passage to a haven country that is not a member of the court well before any indictments were handed down. Qaddafi, of course, chose not to, but though the arrest warrant complicates a sanctuary plan, it does not bury it.
Last but certainly not least, enforcing the arrest warrants is also the best road out of Libya for the Western nations, most of which — not least the United States — are faced at home with the unpopularity of the seemingly unending NATO campaign. It allows them a means of winding down military action without capitulating to an odious dictator. In the case of the United States, this path would reclaim America’s reputation overseas as a leader of international justice, which matters every time Washington tries to preach with a straight face human rights and justice to other governments. U.S. foreign policy is burdened with the simple fact that Washington’s credibility was shattered after 9/11 with the Bush administration’s so-called war on terror and its foolish rejection of the country’s historic adherence to the rule of law. The Anglo-American invasion of Iraq without Security Council authorization and everything that followed are legacies it will take a very long time to overcome. Let’s begin in Libya.