On Point: Libya: Toothless Lawfare Amid Warfare


by Austin Bay
May 17, 2011

This week, International Criminal Court (ICC) prosecutorsannounced that they intend to indict Libyan dictator Moammar Gadhafi on anarray of charges, including war crimes and crimes against humanity. Gadhafi'sregime immediately dismissed the ICC investigation as imperialist propaganda.

For possibly better, but likely for worse, ICC criminalwarrants -- or at least the threat of warrants -- are now a weapon in theLibyan Civil War.

Threatening indictment gives diplomats a negotiating tool.Go, Gadhafi, before you are indicted. As a psychological weapon, criminalwarrants emphasize the tyrant's personal responsibility for the regime's mostgrievous crimes and underscore his status as an international pariah.

The political message to Gadhafi loyalists is notparticularly subtle: Now is the time to abandon the dictator and make your owndeal. Provide ICC investigators with more hard evidence, and the court mayreward you with immunity or leniency. Why -- wink, wink -- you might considerlaunching a coup d'etat and serve as the ICC's arresting authority.

Every district attorney in America knows the trick. It's away to divide a gang, stir doubt among gang members and further isolate theDA's main target, the gang leader.

An American DA, however, has police SWAT teams to enforcethe rule of law, even on the gang's home turf. The DA also has firmjurisdiction. But in Libya's grim situation, which the ICC intends toinfluence, Gadhafi retains sufficient guns and money to control of a heftychunk of turf where his whim is law.

Which leads to the downside of actual ICC indictments filedand pursued in the middle of an unresolved war. ICC legitimacy is uncertain.Libya, like many countries (including China, India and the U.S.), does notrecognize ICC jurisdiction. Instead of sowing division, actual indictmentscould unite loyalists if they conclude fighting is preferable to prison. Actualindictments -- if they are respected -- limit diplomatic solutions, such asexile in exchange for quitting power. Gadhafi's buddy Venezuelan tyrant HugoChavez might still give him a bolt-hole with great beaches, but an ICC wantedposter makes that option more iffy.

Critics of ICC lawfare during warfare argue that ICCwarrants have hindered diplomatic solutions to Uganda's war with the LordsResistance Army (LRA) and thus prolonged it. In 2005, the ICC indicted LRAsenior commander Joseph Kony for numerous crimes, including murder and sexualenslavement. Kony is guilty -- but the battlefield is bigger than thecourtroom. Since 2006, peace negotiations have floundered, with Kony'sindictment 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 ICCstuck 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 limitedutility and potentially deleterious effects criminal indictments create incomplex ongoing tribal conflicts and civil wars. Meanwhile, LRA thugs attackdefenseless central African villages and innocents die.

As for ridiculing ICC authority, thugs protected by armedforces already sneer -- Sudan's president Omar al-Bashir being the mostobnoxious scofflaw. Prosecutors assert Bashir implemented "a plan todestroy 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 hesells oil to China and travels with relative freedom. Bashir has visitedDjibouti since his indictment. No arrest. And no consequences for no arrest.Bashir has turned his ICC charges into a Third World cause celebre. He toutshis indictment as an example of U.N. and western imperialism. Gadhafi'spropagandists now echo Bashir's tout.

The ICC's limited threat to Gadhafi actually has twosources: NATO aircraft and the Libyan rebels growing combat power. Theunresolved war is Gadhafi's real courtroom. Until Gadhafi's army surrenders orlaunches a coup, the dictator's warfare will render ICC lawfare an exercise inrhetoric, not justice. 

To find out more about Austin Bay and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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