Britain, France Flirting with Letting Gaddafi Avoid Prosecution by the ICC

There are reports that both Britain and France are toying with the possibility of a peace plan in Libya by which Gaddafi will leave power but not be brought to justice before the International Criminal Court. Last month, a Pre-Trial Chamber issued an arrest warrant against Gaddafi for crimes against humanity and war crimes.

On Monday, the British Foreign Secretary, William Hague (don’t confuse him with The Hague) said a political settlement was being considered by which Gaddafi would relinquish power but remain in Libya.

‘What happens to Gaddafi is ultimately a question for the Libyans’, Hague said. ‘It is for the Libyan people to determine their own future. Whatever happens, Gaddafi must leave power.’

France has made similar declarations.

Hague was apparently building upon a statement from Mustafa Abdul Jalil, president of the rebel national transitional council, who said that Gaddafi could remain in Libya if he left power.

But Florence Olara, who is spokesperson for the Prosecutor of the International Criminal Court, said: ‘Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC's decision’.

And so we return to the peace and justice conundrum that has troubled the International Criminal Court since it began prosecutions in 2005. Indeed, it is an issue that all international tribunals dealing with crimes committed in ongoing conflicts have had to confront. To what extent can justice be sacrificed to peace?

Impunity for Gaddafi in exchange for peace and democracy in Libya seems a small price to pay. Some think it an unconscionable transaction, but I wouldn’t agree, and I am sure that the people of Libya don’t either.

Gaddafi may look to the example of Charles Taylor, who was also promised a ‘get out of jail free’ card in exchange for leaving power. The peace deal that ended the conflict in Liberia included a promise that Taylor could live in exile in Nigeria. But states reneged on the deal. Gaddafi may be mad but he’s not stupid.

The questions raised by this problem were hotly debated in 2006-2007 after the arrest warrants were issued against leaders of the Lord’s Resistance Army in Uganda. The threat of prosecution brought them to peace negotiations, and an end to the war seemed within reach. But when the rebel leaders demanded that the charges be dropped, the ICC Prosecutor answered that this was impossible. The peace settlement collapsed. The rebels refused to sign the agreement. The Lord’s Resistance Army are still out there, although conflict in northern Uganda has abated, possibly only temporarily. Then, the African Union demanded that the Court back off from proceeding against the president of Sudan for similar reasons. The Prosecutor answered that it could not do so, and that the way to block prosecution was through a Security Council resolution.

What is so significant about the latest development in Libya is that it indicates that two of the strongest supporters of the Court – Britain and France – do not see international justice as an absolute. It is something to be balanced with the imperatives of ending armed conflict. They had hinted at such a view in 2008 at the time of the application for the Bashir arrest warrant. But the United States, which had become ‘more Catholic than the Pope’, insisted this would damage the integrity of the Court and pledged to veto any resolution of the Security Council intended to suspend or block the prosecution of Bashir.

There are extreme views on both sides of this debate. Among supporters of the International Criminal Court, the prevailing opinion is that expressed by the Office of the Prosecutor. The theory behind this is developed in the Prosecutor’s paper on ‘interests of justice’ where he says that the decision to temper justice so as to promote peace should be made outside the Court, at the Security Council.

There is a difficulty with this ‘division of labour’ approach to the peace and justice problem. Much of the enthusiasm for the International Criminal Court has been driven by the desire of states to create an institution that is not subservient to the Security Council. Article 16, which is the provision by which the Court acknowledges the authority of the Council to block prosecution, was an ugly compromise. Most states – and certainly almost all states from the Global South – would have been delighted to eliminate article 16 altogether.

But in his ‘interests of justice’ paper, the Prosecutor said that the way to deal with peace is through article 16 of the Rome Statute. I believe that this philosophy does not sit well with many states, and that it helps explain the unhappiness with the Court that we have seen in Africa in recent years.

Can what the British and French (and the rebel leaders) propose be done lawfully? Libya is not ordinarily under an obligation to cooperate with the Court, because it is not a party to the Rome Statute. As I understand the position of the British Foreign Secretary, as long as Gaddafi remains in Libya there is no obligation for it to surrender him to the Court. But Resolution 1970, by which the Libya situation was referred to the Court (in accordance with article 13(b) of the Rome Statute), states:

5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

The reference to ‘States not party to the Rome Statute’ means the US, China, Russia and so on, but not Libya, as I understand it, because of the first phrase in the paragraph.

Of course, the Security Council could revoke the resolution, of course. That would be a terrible blow for the Court, however. This is the dilemma created by the Prosecutor’s approach to the peace/justice relationship. Assigning the ‘peace’ component to the Security Council has the consequence of subordinating the Court to the Council, and this is not in the best interests of the institution. It would be better if the Court could offer a comprehensive, holistic approach to peace and justice. The Prosecutor should use the powers granted by article 53 of the Rome Statute to agree to withdraw from a situation when this is in the interests of peace. He has no need of the Security Council. In the long run, this will protect and promote the Court, and ensure that the broad support it has enjoyed throughout the world will continue.