by Austin Bay
May 17, 2011
This week, International Criminal Court (ICC) prosecutors
announced that they intend to indict Libyan dictator Moammar Gadhafi on an
array of charges, including war crimes and crimes against humanity. Gadhafi's
regime immediately dismissed the ICC investigation as imperialist propaganda.
For possibly better, but likely for worse, ICC criminal
warrants -- or at least the threat of warrants -- are now a weapon in the
Libyan Civil War.
Threatening indictment gives diplomats a negotiating tool.
Go, Gadhafi, before you are indicted. As a psychological weapon, criminal
warrants emphasize the tyrant's personal responsibility for the regime's most
grievous crimes and underscore his status as an international pariah.
The political message to Gadhafi loyalists is not
particularly subtle: Now is the time to abandon the dictator and make your own
deal. Provide ICC investigators with more hard evidence, and the court may
reward you with immunity or leniency. Why -- wink, wink -- you might consider
launching a coup d'etat and serve as the ICC's arresting authority.
Every district attorney in America knows the trick. It's a
way to divide a gang, stir doubt among gang members and further isolate the
DA's main target, the gang leader.
An American DA, however, has police SWAT teams to enforce
the rule of law, even on the gang's home turf. The DA also has firm
jurisdiction. But in Libya's grim situation, which the ICC intends to
influence, Gadhafi retains sufficient guns and money to control of a hefty
chunk of turf where his whim is law.
Which leads to the downside of actual ICC indictments filed
and pursued in the middle of an unresolved war. ICC legitimacy is uncertain.
Libya, like many countries (including China, India and the U.S.), does not
recognize ICC jurisdiction. Instead of sowing division, actual indictments
could unite loyalists if they conclude fighting is preferable to prison. Actual
indictments -- if they are respected -- limit diplomatic solutions, such as
exile in exchange for quitting power. Gadhafi's buddy Venezuelan tyrant Hugo
Chavez might still give him a bolt-hole with great beaches, but an ICC wanted
poster makes that option more iffy.
Critics of ICC lawfare during warfare argue that ICC
warrants have hindered diplomatic solutions to Uganda's war with the Lords
Resistance Army (LRA) and thus prolonged it. In 2005, the ICC indicted LRA
senior commander Joseph Kony for numerous crimes, including murder and sexual
enslavement. Kony is guilty -- but the battlefield is bigger than the
courtroom. Since 2006, peace negotiations have floundered, with Kony's
indictment a major issue.
In 2009, mediators reported that Kony wanted a peace deal,
but it must guarantee he would not be prosecuted by the ICC. No dice. The ICC
stuck to its warrants. Uganda, which originally encouraged Kony's indictment,
has indicated it will ignore the warrants if Kony surrenders.
ICC advocates contend this undermines the court's authority
-- and it does. ICC critics say the tangled situation demonstrates the limited
utility and potentially deleterious effects criminal indictments create in
complex ongoing tribal conflicts and civil wars. Meanwhile, LRA thugs attack
defenseless central African villages and innocents die.
As for ridiculing ICC authority, thugs protected by armed
forces already sneer -- Sudan's president Omar al-Bashir being the most
obnoxious scofflaw. Prosecutors assert Bashir implemented "a plan to
destroy in substantial part the Fur, Masalit and Zaghawa groups."
Translation: Bashir is guilty of genocide in Sudan's Darfur region.
Bashir is guilty, but the Darfur war grinds on while he
sells oil to China and travels with relative freedom. Bashir has visited
Djibouti since his indictment. No arrest. And no consequences for no arrest.
Bashir has turned his ICC charges into a Third World cause celebre. He touts
his indictment as an example of U.N. and western imperialism. Gadhafi's
propagandists now echo Bashir's tout.
The ICC's limited threat to Gadhafi actually has two
sources: NATO aircraft and the Libyan rebels growing combat power. The
unresolved war is Gadhafi's real courtroom. Until Gadhafi's army surrenders or
launches a coup, the dictator's warfare will render ICC lawfare an exercise in
rhetoric, not justice.