The International Jurist

I had been meaning to write a series of posts on the travails of R2P and the situation in Libya a few months ago. Although I had announced that I would be writing on these issues, I regrettably never found the time to write anything publishable.

Time is as ever short as it has been for the past 4 months, but the discussion and debates surrounding the fate of Libyan leader Muammar Qaddafi are sufficiently challenging and telling of the difficulties of the Responsibility to Protect (R2P) doctrine and of international criminal justice that I feel like pitching in as well.

For those who missed it, about a week ago, French Foreign Minister Alain Juppé announced that Colonel Qaddafi could eventually stay in Libya if he relinquished power:

“One of the scenarios effectively envisaged is that he stays in Libya on one condition, which I repeat: that he very clearly steps aside from Libyan political life,” Mr. Juppé said on the French television channel LCI. “A cease-fire comes about by a formal and clear commitment by Qaddafi to give up his civil and military responsibilities.”

This surprising change of policy from one of the nations that most actively pushed in favor of UN Security Council Resolution 1970 (2011), which referred the situation in Libya to the International Criminal Court, was later confirmed by the United Kingdom’s Foreign Minister William Hague (see video here) and by the United States, as well as by certain rebel leaders.

There is no doubt that this new move was calculated to bring about a window of opportunity for political negotiations towards an end of the persistent stalemate that has characterized this civil war, and of Western military engagement, which has proven costly for already cash-strapped States.

But whether this move helps negotiations move forward or not – History will tell – it is a challenge and a blow to the International Criminal Court’s work and fragile legitimacy for it to be brushed away in the midst of a crisis by two countries that are among the Court’s strongest supporters among middle-powers: France and the United Kingdom.

The ICC quickly reacted to this change in policy by reaffirming that Qaddafi cannot be left in Libya by virtue of the arrest warrants which were quickly issued against the Libyan leader, his son Saif Al-Islam and the head of Libya’s Military Intelligence Abdullah Al-Senussi:

“The international criminal court has dismissed suggestions by Britain and France that Colonel Muammar Gaddafi could be allowed to remain inLibya as part of negotiated deal to remove him from power, insisting that a new government would be obliged to arrest the dictator under warrants issued by the court. (…)

But Olara said the decision to seek justice had been made in the UN, adding that the ICC’s arrest warrants were “legal facts” which “cannot go away”.

“Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC’s decision,” Olara said.

And so, predictably, the Libyan case becomes yet another intellectual battlefield for debates on the relationship between peace and justice, and the price of each compared with the other.

The law

As far as international law is concerned, the International Criminal Court is unquestionably right. The United Nations Security Council referred on 26 February 2011 the situation in Libya to the International Criminal Court by virtue of Article 13(b) of the Rome Statute. Once a situation is referred to the ICC, the Court acts entirely independently in carrying out investigations, delivering arrest warrants, and rendering justice, and States cannot simply make other arrangements that suit their political goals. What’s more, the State in question – in this case, Libya – has an obligation under the UN Charter to cooperate with the Court (paragraph 5 of Resolution 1970). Strictly legally speaking, there is no escaping such clear obligations.

The infeasibility of Article 16

As David Bosco notes however on his blog The Multilateralist, there is one legal path the UN Security Council could allow Qaddafi to remain in Libya: vote yearly UN Security Council Resolutions that defer any proceedings before the Court for the duration of one year each time, as Article 16 of the Rome Statute permits it:

“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

However, that is very unlikely to happen. As I have written before, Article 16 seems unpractical in all cases. It is difficult to imagine the Security Council voting year after year resolutions deferring the investigation of Muammar Qaddafi, Saif Al-Islam Qaddafi, and Al-Senussi, until their death to make sure they escape justice. The fact that it takes only one veto, or the lack of the required 9 out of 15 majority, to make the deferral fail, makes Article 16 even more precarious. Politically speaking, the UNSC would be shooting itself in the foot, de facto recognizing that it had moved too brashly in referring a situation to the ICC and that it is forced by political circumstances to go back on its word.

I seriously doubt we will ever see an Article 16 deferral. David Bosco is quite right to conclude that:

“as usual, the Council members want to have it all: they want to talk grandly about ending impunity but are much less sure about altering their policies to actually do so.”

The politics of Justice

I know nobody who understands better the politics of international justice than Mark Kersten, a current LSE PhD student and author of widely recognized blog Justice in Conflict, who wrote on this issue yesterday (emphasis is mine):

A number of Western states involved in the conflict, notably France and Britain, have begun to refine their “exit solution” for Col. Gaddafi, saying that while he cannot be allowed to retain power, he may be allowed to remain in Libya.

Meanwhile, these governments have declared that Gaddafi must be arrested and brought to the Hague – although, dubiously, never in the same statements regarding peace negotiations. They were at the vanguard of the UN Security Council’s resolution to refer the situation in Libya to the ICC. It bears asking whether the persuasion of states like the UK and France in support of the referral was the result of a desire to instrumentalize the Court in efforts to put pressure on and marginalize Gaddafi rather than because of any steadfast conviction of the need to bring Gaddafi to justice. Regardless, by simultaneously holding these two contradictory and apparently mutually exclusive positions, these governments undermine the pursuit of international criminal justice.

In a comment below Mark’s piece, Patrick Wegner raises the question as to whether the referral of the situation in Libya (as well as the situation in Darfur) was not, in fact, a “poisoned gift.” He writes:

I think there is an emerging pattern concerning the Security Council referrals of situations to the ICC. The UNSC refers a case when it really needs to be seen doing something and then disengages from the process, providing no further assistance to the ICC.

Both Mark and Patrick point to a larger and rather regrettable trend in the international community’s approach to international justice: the referral of a situation to an international tribunal (from the ICTY in 1993 to the ICC since 2005) in order to not have to intervene politically – and eventually militarily – in a delicate situation or conflict.

There is a series of rather crude attempts by the UNSC to delegate (or “outsource” to quote one of Mark’s past posts) their responsibility to maintain international peace and security to international judiciaries or to use the international criminal justice system put in place as a political pressure tool in negotiations. Libya seems to be the latest of these attempts.

Yet most of these attempts have failed: on one side, the international community was forced to intervene more often than not in situations it referred to international tribunals and courts (in the Balkans, for example, or more recently in Libya), and found a worse situation than had they assumed their responsibility right away, and on the other hand, international lawyers have always managed with persistence and patience to outmaneuver their political “masters” – or rather “creators” – and bring those responsible for atrocities to justice.

So what about Libya?

There is no denying that the situation in Libya is complex and that there is no easy answer to how to obtain peace and justice at the same time. We still lack the hindsight to fully appreciate the situation and establish the lessons to be learned for the future of international justice, especially considering that the conflict is ongoing. As popular wisdom suggests, “we know how wars start but not how they end.”

In all honesty, I am left a bit perplexed about the situation in Libya. I understand the States’ concern about how the conflict evolved: despite their military intervention, the war has been in a difficult stalemate for the past four months. Western States are in the midst of an economic crisis, giving them even less room to maneuver than usual, even assuming they are of good faith, and cannot sustain their military engagement in Libya. For a set of political reasons, they cannot increase further their involvement (for example, with ground troops) to bring a quicker end to the conflict.

On the other hand, I am a strong supporter of international criminal justice and believe that no crime should be left unpunished. I do not believe Qaddafi and his acolytes should be let go for matters of political expediency, and am frustrated by the Coalition’s constant improvisation that at times reeks of amateurism (I am also tired of hearing Bernard Henri-Levy talking continually on French radio, as if he was an authority in these matters, but I digress).

Questions to start asking

There are questions we can already start to raise, starting with the international community’s use of international judicial systems.

Resolution 1970 was voted largely with the hope that it would deter combatants, and particularly the Qaddafi regime, from committing more atrocities. The deterrence effect of the ICC is clearly still limited. Despite its efforts, the Court is still too “marginal” and insufficiently legitimate to “scare” certain individuals from committing mass atrocities. There is no cause for worry or despair: such things take time, and it is not abnormal for a new international criminal judicial system to take years before gaining such authority over State leaders who have benefited from immunity for far too long.

However, it is clear that the international community’s referral of situations to the ICC have not always been helpful to the Court. Certainly not because of the referrals themselves, but because of the lack of will by States to support these referrals with the necessary political muscle to the end, or by their rather crude attempts to manipulate the system to inflict political pressure, as if international justice was a mere bulldog to keep on a more or less short leash.