Gaddafi and the ICC: fateful encounter

Over at Foreign Affairs online, David Kaye (author of a longer essay in the latest print issue and one of the sharpest analysts of the International Criminal Court) explores the ways that Moammar Gaddafi might end up in the Hague and the broader implications of an arrest warrant for the ICC. Kaye is not sanguine about the prospects for an arrest anytime soon:

Whatever qualified support [Moscow and Beijing] offered to UN Security Council Resolutions 1970 and 1973 has dissipated, with the NATO air campaign now entering its third month. Moreover, although the United States has stood behind the referral and the NATO operation, it is far from clear that Washington would support a resolution that would "obligate" all states to enforce ICC arrest warrants. Such an obligation would likely be seen as interfering with the ongoing military mission; meanwhile, many members of the U.S. Congress, especially Republicans, would not approve of any requirement to support the ICC.

He argues that the expected indictments of Gaddafi and his closest aides is an important moment for a court still struggling to establish its effectiveness:

The warrants represent a high-risk move by [ICC prosecutor] Moreno-Ocampo. A positive ending to the story — the arrest of one or more of these perpetrators and their transfer to The Hague — would make the public perceive the ICC as a real player. But a bad outcome — no arrest, continued atrocities, a safe haven or something else for the Libya three — could further ingrain in the international community an image of the court as more of a tool than a valuable end in itself.

Kaye’s piece is hitting on something important here: how to use multilateral instruments in ways that maximize their potential rather than exacerbate their weaknesses. The Obama administration took a kitchen-sink multilateralism approach in Libya. It threw just about all the institutions it could get its hands on at the problem: the Arab League, the UN Security Council, the UN Human Rights Council, NATO, and the ICC. Plenty of this was appropriate and wise.

But not all institutions are suited for all problems. Great damage was done to the United Nations in the early 1990s when member states–including the United States–told peacekeepers to grapple with problems for which they weren’t suited (Bosnia in particular). I worry that forcing the Libya operation into the NATO framework has unnecessarily exacerbated existing tensions within the alliance (while adding little of real value militarily). And with the ICC, as Kaye points out, the stakes are high. Referring the Libya situation to the court without any game plan for arresting those indicted could do more harm than good for a court already struggling to get states to cooperate with its efforts.

It’s obviously difficult to think about the long-term health of multilateral instruments in the midst of a roiling crisis. But it’s essential. Sometimes the most damage is done to international institutions by those who love multilateralism.