What a Qaddafi indictment would mean

Italian foreign minister Franco Frattini expects the International Criminal Court’s prosecutor to seek an indictment of Libyan leader Moamar Qaddafi at the end of the month. Last week, ICC prosecutor Luis Moreno Ocampo told the UN Security Council that he would seek three indictments in the next few weeks but did not name names. Ocampo did insist, however, that he would be pursuing those "most responsible" for the violence and he made clear in his comments after the briefing that all  three individuals were associated with the regime, rather than with the rebel forces.

What will it mean if Qaddafi is indicted? In his comments, Frattini suggested that it would effectively end the possibility of exile for Qaddafi and his circle. Post-indictment, he said, "all the international community would have legal obligations [to seek Qaddafi’s arrest]." In fact, the Security Council resolution referring the Libya case to the ICC makes clear that "States not party to the Rome Statute have no obligation under the Statute." Absent some new Council measure, it appears that a non-ICC member could offer an indicted Qaddafi exile without flouting the Council’s will, and probably without annoying it. If last week’s Council meeting on the ICC investigation is any indication, several prominent members, including the BRIC countries, would likely welcome a political solution to the crisis. In their statements, the ambassadors from India, China, South Africa and Nigeria all made clear that peace and stability are their most important goals. By implication, justice is secondary.  

An indictment would certainly complicate exile because it wouldn’t be easy for Qaddafi to leave Libya without the acquiescence of NATO forces, almost all of whom are members of the ICC and have a legal obligation to assist the court. But assuming that Qaddafi were to cross by land (rather than test the no-fly zone) into another non-ICC state (Egypt or Algeria, for example), it’s doubtful that coalition forces who belong to the ICC would be under an affirmative legal obligation to seize him.

The possibility that Qaddafi and his senior leadership might slip through the court’s fingers is clearly worrying the prosecutor. The court has already indicted a number of prominent figures who remain at large, including Sudanese president Omar al-Bashir and notorious militia commander Joseph Kony. During his briefing last week, Ocampo asked the Council members to  think ahead about how to enforce arrest warrants. Whether they are doing so is unclear. It’s evident from his public statements that the prosecutor has been frustrated by the unwillingness of member states–even those who championed the idea of the court–to make enforcing its warrants a priority. It’s easy to love the ICC in the abstract; it’s tough to make its effectiveness a diplomatic priority.