The Duck of Minerva

The Duck Quacks at Twilight

ICC Sheriff Too Quick on the Draw

May 9, 2011

This is a guest post by Leslie Vinjamuri and Jack Snyder. Leslie is Co-Director of the Centre for the International Politics of Conflict, Rights and Justice and a Lecturer in the Department of Politics and International Studies at the School of Oriental and African Studies, University of London. She is also the co-chair of the London Transitional Justice Network. Jack is the Robert and Renée Belfer Professor of International Relations at Columbia University

Last Wednesday’s announcement that the International Criminal Court will seek arrest warrants against three senior officials in Libya will come as no surprise to Security Council members who gave the ICC authority to investigate. They may soon find themselves regretting this decision.

The responsibility to protect and the duty to prosecute both have strong coalitions backing them, but these two norms do not always go well together. The duty to prosecute removes an indispensable strategy for inducing the peaceful exit of perpetrators. Unless NATO is prepared to put boots on the ground, its ability to negotiate a palatable exit for Qaddafi and his key supporters could become essential to bringing an end to this intervention.

Libyan rebel leaders demand that Qaddafi step down, but they refuse to negotiate a settlement with him. Leaders in Britain, France, and the United States have embraced this rebel demand, blurring the line between the goal of protecting civilians and regime change. So far, though, they have been prudent. The mandate of protecting civilians has not been used to justify an expanded mission with on the ground operations to ensure a swift change of regime.

Without an international decision to invade or arm the rebels, it is hard to imagine how this conflict will end. The ICC’s announcement that arrest warrants are forthcoming will only make this worse. Qaddafi or his core supporters will be unlikely to abdicate power without guarantees against prosecution. The international coalition that backed UN Security Council Resolutions 1970 and 1973 may have boxed itself into a corner.

Any arrangement that might be made – perhaps an offer of sanctuary in Venezuela or Zimbabwe – comes under the cloud of the Charles Taylor precedent, who was flushed out from his asylum in Nigeria. This put dictators and mass murders on notice that there is no such thing as a reliable promise of sanctuary.

By severely limiting the Council’s ability to bargain with Qaddafi’s lieutenants over indictments, the Security Council’s referral of Libya to the ICC also complicates its ability to use inducements combined with economic sanctions to drive a wedge between the dictator and his fence-sitting backers. This places even greater pressure on NATO to expand its mission beyond protecting civilians to encompass regime change and ensure Qaddafi’s defeat.

Security Council Resolution 1970 was unique in signaling a desire to bargain with members of the Libyan regime. It enables the Council to undertaken further measures “including the strengthening, modification, suspension or lifting of the measures” depending on whether the Libyan authorities comply with the terms of the resolution. The trick now, as the campaign continues, is to leverage this conditionality in Resolution 1970, combined with the ongoing air campaign, as part of an integrated strategy designed to coerce Qaddafi and his cohort to cease their violent tactics and negotiate a peace with the rebels.

Striking a bargain with Qaddafi that provides him a safe exit while removing him as an ongoing threat will now be difficult since he most certainly will be one of the three candidates for arrest. But the opportunity to provide Qaddafi loyalists a carrot may be even more important than before. What can the Security Council offer potential defectors? Under the current arrangements, the Security Council can suggest a deferral of any trials of Qaddafi supporters for 12 month periods. But this may be insufficient. The Security Council would be wise to assert its continued authority over the situation in Libya in a new resolution offering leniency to Qaddafi’s aides who defect by a specific date.

It is of course entirely plausible that Qaddafi loyalists are choosing whether to stay and fight, or jump ship, based mainly on an assessment of Qaddafi’s ability to hang onto power rather than any carrots the Security Council provides. But on the margins, the UN’s carrots and sticks could matter. If sanctions are to have maximum effect, they need to combine the promise of relief with the threat of punishment.

If international justice is going to be a primary tool of coercive diplomacy in ongoing conflicts, those wielding the tool need to rethink how to exploit the leverage it can provide. A better tactic would be to create independent commissions of inquiry that may proceed with investigations, but would remain under the authority of the Security Council until peace has been secured. This would delay any final decisions about which crimes will be prosecuted, keeping open the possibility of rewarding those who switch from supporting war criminals to protecting human rights. In this way, international justice can target the most irredeemable perpetrators.

Delaying justice until conflicts stop would not be exceptional, and it may also mean better justice as well as more peace. In Kenya, for example, investigations into the post-election violence were taken without prejudice as to which court would ultimately prosecute any cases. Delaying decisions until after the fighting ends has the advantage that domestic courts might be ready to undertake trials of perpetrators, leaving the ICC to its intended role under the Rome Treaty’s “complementarity principle” as a court of last rather than first resort. Protecting civilians and holding war criminals are both worthy goals but it might not be possible to do both at the same time.

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Jon Western has spent the last fifteen years teaching IR in liberal arts colleges at Mount Holyoke College and the Five Colleges in western Massachusetts. He has an eclectic range of intellectual interests but often writes on international security, U.S. foreign policy, military intervention, and human rights. He occasionally shares his thoughts about professional life in liberal arts colleges. In his spare time he coaches middle school soccer, mentors the local high school robotics team, skis, and sails.