Qaddafi’s Arrest Warrant: The False Peace-Justice Tradeoff

Monday’s decision by the International Criminal Court (ICC) to issue a warrant for the arrest of Muammar al-Qaddafi for crimes against humanity has occasioned much gnashing of teeth from foreign policy realists like John Bolton, who clearly wish the three-judge panel had held its fire until the armed conflict in Libya had ended. What incentive does the Libyan leader have to relinquish power now, when he faces the prospect of being frog-marched to The Hague? Haven’t we learned by now that accountability must be sacrificed in the interest of peace—or at a minimum, deferred until the shooting stops?

Well, no. The oft-invoked trade-off between peace and justice is less persuasive than meets the eye. It rests on an assumption that the threat of prosecution dissuades leaders from yielding power and complicates negotiations between perpetrators of mass atrocities and their opponents. “Heads of state are less inclined to consider a negotiated settlement, once they’re in an armed conflict like this, if they have an international indictment hanging over their heads,” claims Steven Groves of the Heritage Foundation. Earlier this month, Washington Post columnist Jackson Diehl stated the thesis baldly: “The Libyans are stuck in a civil war in large part because of Gaddafi’s international prosecution.” The apparent policy conclusion is that sometimes impunity trumps accountability.

This marks the second time that the ICC has indicted a sitting head of state. In 2005, the ICC indicted Omar al-Bashir for alleged crimes committed in Darfur. The Sudanese leader, of course, has remained free for the past six years, though not entirely at liberty. He was due to travel to China Monday, but had to postpone meetings there when Turkmenistan denied a request for his plane to proceed through its airspace. Admittedly, this is a far cry from bringing Bashir to justice. But pariah status can limit leaders’ international influence and set the stage for future marginalization and punishment.  As Mark Kersten explains, “champions of international criminal justice point to the marginalization of Radovan Karadzic and Ratko Mladic during the Bosnian crisis, barring them from participating in (and presumably de-railing) the Dayton peace talks.”

Furthermore, the United States abstained from the UN Security Council (UNSC) vote that referred Bashir to the ICC, weakening Bashir’s indictment. However, the United States joined the United Kingdom, France, and non-ICC members of China and Russia to support the UNSC resolution authorizing force in Libya.  The diverse coalition that has vowed to stop Qaddafi indicates that the international community is likely to uphold Qaddafi’s ICC arrest warrant more faithfully than Bashir’s.  The ICC indictment also expands the moral basis for the NATO-led intervention, which may be helpful in bolstering support from wavering allied publics.

Historical experience suggests that the failure to hold perpetrators accountable for their actions sows the seeds of future violence.  A case in point is Sierra Leone. Misguided amnesty in 1999 for the warlord Foday Sankoh presumed that he would be satisfied with a peace settlement. But soon after Sankoh was pardoned, he was leading rebel forces in violent campaigns that helped plunge the nation into chaos once again.

Qaddafi has already dug in his heels, declaring that he’s not going anywhere, and the latest ICC action will not affect his calculations. As Richard Dicker of Human Rights Watch notes: “It beggars belief that a dictator who has gripped power for over forty years would be frozen in place by this arrest warrant.” Qaddafi and his inner circle have repeatedly rebuffed past offers to seek exile abroad.

Indeed, an argument can be made that the warrant will hasten rather than delay Qaddafi’s departure from power, because it is yet another step in delegitimizing his rule. The warrant not only condemned Qaddafi, but also his son Saif al-Islam Gaddafi and his brother in law, the chief of military intelligence, Abdullah al-Sanoussi, for their alleged roles in the murder of hundreds of Libyan civilians since mid-February 2011. The threat of punishment for involvement in the Qaddafi regime’s criminal actions may well generate new high-ranking defections.