The International Criminal Court (ICC) issued arrest warrants for Libyan leader Colonel Qaddafi, his son, and his intelligence chief, but this move will likely escalate the Libyan crisis, and further alienate the African Union (AU).
The three were accused of “crimes against humanity, and of the murder and persecution of civilians” from the period between February 15 through the 28 in Benghazi and other Libyan cities. The decision immediately raised concerns, especially in the African Union, which has an uneasy relationship with the court. The AU envoy to Libya, South African President Jacob Zuma had earlier accused the NATO bombing campaign as an assassination attempt on Qaddafi’s life, and yet another western interference in an African country. The move by the ICC will likely embolden Qaddafi; a-la- President Bashir of Sudan who is still in power despite an ICC warrant for his arrest. Further, it will jeopardize AU mediation efforts, and undermine the courts’ credibility if Qaddafi is offered a deal with guarantees of immunity as part of any future agreement.
Sudan is a perfect example why the ICC should not rush into issuing arrest warrants when hostilities are continuing, and certainly not when the accused are still in power. There is no incentive now for Qaddafi to leave. Before the Bashir warrant in Sudan, there was talk of a negotiated end to the Darfur conflict, even the idea of Bashir stepping aside and allow for a withdrawal of Sudanese troops and militias from the region. What the warrant did was antagonize Bashir and his die-hard supporters. It did not only escalate the crisis in Darfur, but threatened the whole of Sudan, jeopardizing the fragile peace between the north and the south. While some might argue that these are unrelated, the most important calculation for Bashir is to save his skin by manipulating the peace process in both Darfur and Southern Sudan, so he could remain in power indefinitely. He knows that he is assured some type of immunity as long as he remains president. Qaddafi and his cronies will undoubtedly learn from the Bashir playbook, and do everything to remain in power.
The ICC decision also risks damaging hopes of a negotiated settlement to the crisis, as the issue of the arrest warrant will now be used as a bargaining chip, and even a precondition for negotiations. How can one expect Qaddafi and his co-accused to negotiate in good faith when they very well know that it offers no incentive for them? They will try everything to secure some type of deal, and if that happens, two scenarios will be at play. If the crisis is resolved politically and Qaddafi and co are offered some type of immunity in exchange for leaving Libya, then the warrant will be undermined, and the ICC will lose its credibility. If on the other hand the conflict escalates because Qaddafi decides to take a last stand against the prospect of a trial in The Hague, then the Libyan people will suffer a longer and more brutal crisis. Both of these scenarios will not bid well for the ICC, especially if the conflict becomes a tribal war of attrition. The Libyan leader still has some supporters among his tribe in western Libya who are armed, and ready to defend him.
Finally, the ICC remains very controversial in Africa, and this latest warrant for another African leader will not help the courts’ image. It will make cooperation difficult. President Bashir of Sudan is running around different countries just to prove that he can, and other countries are reluctant to arrest him even though they are obligated to do so. Many in Africa still see a double standard with the ICC, and its perceived African witch-hunt, especially when similar human rights violations are occurring in Syria and Bahrain. But more importantly, the AU is trying to mediate a political settlement between Qaddafi and the rebels. The warrant will be an impediment to its efforts, making it harder to gain any type of concession, or good faith negotiations from a government that now feels its back is against the wall.
There is no question that Qaddafi is guilty of human rights abuses. The issue of concern is whether publicly issuing arrest warrants will do anything to minimize the suffering of the people on whose behalf they are issued. The ICC should look at the ways in which it issues arrest warrants, carefully consider the implications, and not cower to political pressure.
Mohamed Jallow is a former Colin Powell fellow (Class of 2008/2009). He is currently a program associate at the Council on Foreign Relations.