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March 8, 2011 12:08 pm

Will Qaddafi Sit on the Bench of the Accused in the Hague?

avatar by Dore Gold


The building of the International Criminal Court in The Hague, Netherlands. Photo: Hanhil.

This past week, the UN Security Council finally passed a resolution on Libya threatening the Qaddafi regime with sanctions in light of reports of widespread attacks on the civilians ordered by “the highest levels of the Libyan government.” It added that these attacks “may amount to  crimes against humanity.” What was new in the UN’s action was the decision of the Security Council to refer the Libyan file to the Prosecutor of the International Criminal Court in the Hague for legal action.

Unlike the International Court of Justice in the Hague that deals with disputes between states, the International Criminal Court (ICC), that was established in 2002, can take actions against individuals who engaged in war crimes. Prior to its establishment, the UN created international tribunals for Rwanda and Yugoslavia. It was the latter that put Milosevic on trial. The ICC, which was not formally a UN body, replaced them. The most famous case in which the ICC recently acted was its decision to issue in March 2009 a warrant for the arrest of Sudan’s president, Omar al-Bashir, for the policies that his military forces followed that led to the “extermination” of the people of Darfur, in western Sudan. According to the ICC, he was responsible for 35,000 deaths. A second warrant for al-Bashir’s arrest,which specifically charged him with “genocide,” was issued in July 2010.

The Arab states decided to protect al-Bashir, in response to the arrest warrants issued against him. Despite his need for Washington’s support, even Abu Mazen visited al-Bashir in Khartoum, during August 2009, when many states had already said that if the Sudanese president set foot in their territory, he would be arrested. Seventeen Arab leaders explicitly rejected the ICC’s decision to seek the arrest of al-Bashir at an Arab Summit in Qatar in 2009. Thus the last time the ICC sought to initiate legal proceedings against an Arab leader, he could still depend on the Arab world for support even if he was charged with genocide.

What will be the impact of the Security Council’s recommendation this time? Will the threat of involving ICC in the Libyan case alter the situation on the ground in Tripoli?  First, there is no question that Qaddafi’s officers will have to take notice. If Libyan officers follow Qaddafi’s orders and fire on Libyan civilians, they have to consider that they could also receive an international arrest warrant. The UN Security Council has already identified senior Libyan officers who were involved in suppressing demonstrations by using violence. But the resolution at this stage only imposed a travel ban on their movements. In other cases, especially members of Qaddafi’s family, it froze their assets abroad.

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It is probable that senior members of the armed forces have been aware of the actions the UN has already taken and do not want to be targeted themselves with any sanctions of these sorts. In short, the threat of legal action in the future could drive a wedge between Qaddafi and the senior command of the Libyan army. The threat of ICC action can, in some cases, become a factor protecting the lives of civilians who would be butchered, if the military in a state like Libya did not sense that international legal bodies were looking over its shoulder. Perhaps the Security Council thought that by issuing the threat of legal action, they could accelerate Qaddafi’s downfall, since he would find it increasingly difficult to rely on his armed forces for protection.

The threat of legal action, however, can also have the opposite impact: it can harden the position of a leader like Qaddafi, who might fear that if he surrenders, he cannot go peacefully into exile into some palace in Spain or Italy, but rather will be put in a cell in the Hague. Facing such an outcome, dictators facing a popular rebellion, will prefer to fight to the end rather than agree to leave their country. When the idea of an international criminal court was raised in the 1990’s, there were concerns raised by experts that a dictator with weapons of mass destruction might use them if he knows he will face a long imprisonment after he is caught.

Libya has posed hard dilemmas for the West. The US decided not to act as quickly as it did in the case of Egypt, because there were many Western workers there and no one could be certain that Qaddafi would not take them hostage. After all, Saddam Hussein used western hostages as “human shields” int he first Gulf War, and there was no reason not to assume that Qaddafi would  do the same. In past cases, the idea of legal measures against dictators was raised only after they fell from power. The UN Security Council in the Libyan case, proposed the use international indictments while Qaddafi was still in power. It should not come as a surprise that at this point the Libyan revolt looks more like a stalemate than anything else.

This article was originally published in Yisrael Hayom

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