Experts say Libya war crimes indictments may harm peace effort

The International Criminal Court’s chief prosecutor argues that swift legal action against Muammar Qaddafi shows crimes against humanity will not be tolerated, but some experts contend that ICC arrest warrants can hamper diplomacy and may in fact persuade dictators to dig in their heels.

A Libyan soldier walks near a building, damaged in what the Libyan government said were coalition air strikes, which had housed the anti-corruption department in Tripoli. Louafi Larbi / Reuters

THE HAGUE // The chief prosecutor of the International Criminal Court (ICC) says quickly seeking indictments against Libya's leaders will help to end the violence there and deter others from committing war crimes.

Some diplomats and legal experts, however, say that assessment by Luis Moreno-Ocampo is flawed. In fact, some say the ICC action may hamper diplomatic efforts.

Mr Moreno-Ocampo told The National that the warrants he is requesting for the arrest of Muammar Qaddafi, his son and his brother-in-law will affect what is happening on the ground in Libya.

"That is the most important reason to move fast. We have to stop the crimes," Mr Moreno-Ocampo said. He said his investigations showed the killing and torture of regime opponents in territory controlled by Col Qaddafi continued.

But diplomats such as the former Jordanian foreign minister, Marwan Muasher, doubt that the ICC, if and when the arrest warrants are issued, will have such an impact.

"I personally think in Libya, the situation has gone beyond this. This is a fight in which the regime is killing its own people," said Mr Muasher, now a fellow at the Carnegie Endowment for International Peace.

Mr Muasher and others consider the international military intervention in Libya more significant than the ICC's involvement. "Of course it sends a huge signal that the international community will not accept mass murders of the kind that Qaddafi is doing. But that signal has already been sent militarily through both the vote by the UN Security Council and the Arab League action on Libya."

The ICC prosecutor's request for the arrest warrants on Monday came as both diplomatic efforts and military strikes intensified.

France and Britain both urged Nato to step up and expand its attacks on Col Qaddafi's forces, in the unspoken hope of forcing an end to the developing stalemate.

The UN envoy Abdulilah al Khatib was also shuttling between the sides last weekend, trying to find a solution to the conflict. Many observers worry that the ICC's involvement may actually jeopardise such efforts.

Marieke Wierda, director of the criminal justice programme of the International Centre for Transitional Justice in New York, said: "Is there an incentive for Qaddafi to negotiate an exit if it is likely to have him end up in The Hague?" Even so, she supports the ICC's work and suggests there are "solutions that get around that".

For example, the UN Security Council, which referred Libya to the ICC in the first place, can freeze proceedings against Colonel Qaddafi for 12 months. It must then consider again whether to keep the case frozen in the interest of peace or allow prosecutors to pursue the case.

But from both a legal and a practical standpoint, this justice-versus-peace dilemma can be problematic.

"Once you start making cases subservient to a peace process, you open the floodgates. Then, almost by definition, you cannot start cases against very heinous crimes," said Willem van Genugten, professor of international law at Tilburg University in the Netherlands and a long-time observer of the ICC.

This would also undermine the deterrent effect of the ICC, one of the main functions that Mr Muasher sees for the court. He is still proud that Jordan is one of the few Arab countries to sign the ICC's treaty.

"Does it send a signal to others that mass murder is unacceptable and that they will be held to account? For sure. It worked in Serbia. It did not work that well in Sudan, but in general I think that it is one more element that can be added to the toolbox that can be called upon in such situations," Mr Muasher said.

But Mr Van Genugten said he doubted that the court affected the behaviour of dictators. "I suspect that the ICC hardly has a deterrent effect. The people involved are too entangled in their exercise of power. I think it blinds them to the risks," he said.

In the end, such considerations may be secondary. The court's job is meting out justice, Ms Wierda said. "The ICC should not be judged by whether it prevents these crimes because we don't judge our national systems necessarily by that standard either."