Three powerful NATO countries have announced that Libyan leader Muammar al-Gaddafi could stay in Libya if he is willing to step down from his 42-year reign of power. The International Criminal Court (ICC), who issued an arrest warrant against him in June, is saying that he can’t be left in Libya. The question now is: will he ever face justice?
Gaddafi is only the second sitting head of state to have an ICC arrest warrant issued against him. His arrest warrant came on the 100th day of NATO’s operations in Libya, after airstrikes eased the siege by Gaddafi’s forces on key opposition strongholds. The only other arrest warrant that had previously been issued for a sitting African leader was for the Sudanese president Omar al- Bashir who is charged with genocide in Darfur.
Although Gaddafi’s warrant has been issued, sceptics are warning that he could still cling on to power. But what if NATO together with the UN managed to capture Gaddafi and bring him to the courtroom in The Hague? It could have made the way for peace talks in Libya and it would also send a strong signal to all other despots: they would not even be able to hide in their own countries. Unfortunately, it is not that easy. For instance, the ICC issued a warrant for al-Bashir’s arrest over two years ago yet he still remains in power. Critiques of the new trend of prosecuting leaders often point to Sudan. Al- Bashir managed to avoid being arrested by travelling to countries that do not recognize the Rome Statute that created the ICC. The situation in Libya is not likely to be less complicated. According to the ICC it is national authorities that are responsible for arrests. Securing arrests has proven difficult for the ICC as it has no police force and relies on member states to enforce arrest orders.
Now as the UK together with the US and France alluded that they are prepared to agree to a political settlement in Libya that would see Gaddafi remain in the country after giving up power, the ICC is worried the Libyan leader could escape prosecution. However, it is now uncertain whether the National Transitional Council (NTC), who have been recognised by several Western countries as representatives of the Libyan people, are backing the proposition. Although they have previously stated that Gaddafi could remain in the country provided that he resigns, they recently claimed that this is no longer an alternative. ‘We made a proposal, but the deadline has expired. The offer is not valid anymore,’ said NTC leader Mustafa Abdel Jalil. The NTC proposal had a two week deadline.
Is the change in stance by the Western-led coalition a divergence with the ICC or could this be the best approach to end Libya’s struggles? The ICC has fired back on the NATO countries, stating that under ICC warrants a new government in Libya would be required to arrest Gaddafi. ICC spokeswoman Florence Olara stated: ‘Any negotiation or deal has to respect UN Security Council Resolution 1970 and the ICC’s decision.’ The UN Security Council resolution 1970 states: “The Libyan authorities shall co-operate fully with and provide any necessary assistance to the (international criminal) court and the prosecutor.’
Comparing Gaddafi with Bashir, who had his arrest warrant renewed, there is nothing that suggests that either heads of state will stand trial in the near future. Despite Bashir’s warrant he is still able to travel to friendly states which have refused to arrest him.
He visited China, a country that is not a signatory to the ICC statute, on the 28th of June. Since the court issued its arrest warrant, President Bashir, who is facing 51 charges for crimes against humanity and genocide, has been able to visit countries including Eritrea, Egypt, Libya and Qatar.
He also went to visit Kenya, which signed the ICC treaty, but refusing to execute the warrant of arrest that the treaty obliges signatories to perform. Gaddafi like al-Bashir certainly has a case to answer for human rights abuses, however not everyone agrees that issuing an arrest warrant was the right way to solve the situation in Libya.
The African Union, wanting to reach a peaceful transition of power in the troubled nation, has expressed concern that Gaddafi will only intensify the civil war as he knows that leaving Libya or handing over power could result in a potential prosecution in The Hague.
The AU announced that the ICC’s decision undermines their efforts to bring peace to Libya. However, NATO chief Anders Fogh Rasmussen argued that the court’s move highlighted ‘the increasing isolation of the Gaddafi regime.’
So will Gaddafi, like Bashir, manage to avoid prosecution? Firstly, his assets in most countries are frozen and it could be difficult for him to take the Libyan people’s money abroad to live a life in luxury. There has been a rapid development in the world over the last decade with a decrease in exit opportunities for wanted dictators. If Gaddafi gives up power now, he has in practice very few countries to escape to.
While Bashir is making new friends abroad, most recently with Chinese president Hu Jintao, Gaddafi seems to be running out of overseas associates. The Arab League has recognized the opposition as Libya’s ‘appropriate authorities’ and has also had member states such as Qatar participating in NATO’s operations in the country.
Although al-Bashir like Gaddafi has to refrain from travelling to countries that recognize the ICC, he is not threatened by any of the above circumstances.
So, how can the ICC make Colonel Gaddafi’s arrest a reality? The United Nation’s mandate is only open to military use for the protection of civilians. If NATO is to enter Libya and arrest Gaddafi, it will probably require a new resolution. It would also require ground troops, something that the coalition countries are against.
The African Union has expressed their dismay against Gaddafi. As the organisation has condemned NATO-led airstrikes on Gaddafi’s forces, experts warned that many leaders of the pan-African body could refrain from public calls for Gaddafi to go. However, the head of the AU’s mediation team on Libya, Mauritania’s President Abdel Aziz, announced in the beginning of June that Gaddafi’s departure had become essential as ‘he can no longer lead Libya’.
This was the first time a head of state on the AU panel has made such a direct public call for the departure of the Libyan leader.
Paul-Simon Handy, of the Institute for Security Studies in Pretoria, said: ‘Clearly more and more African heads of state feel they can openly express their dislike of Gaddafi.’ He added: ‘The façade of unity that the AU often likes to show on such issues is cracking.’
The new decision by the UK, France and the US was made as they realised that no country wants the responsibility or trouble of hosting Gaddafi. Not even ‘pariah’ regimes in Sudan, Zimbabwe or Belarus. The ICC’s indictment of Gaddafi for alleged war crimes made exile an even less likely option.
Friendless and with the world against him it could only be a question of time before Gaddafi’s fall. Many are not convinced that the ICC arrest warrant will do any good, a notable exception is Luis Moreno-Ocampo, the ICC prosecutor, who announced the arrest warrant for Gaddafi, his son Saif al-Islam and Libyan intelligence chief Abdullah al-Senussi. He stated: ‘Libya is not a state party to the court’s founding treaty, the Rome Statute but it is a member of the United Nations. Therefore, according to Resolution 1970, the Libyan government has an obligation to implement the arrest warrants.’
At the end of the day, it is up to the Libyan people to decide what will happen to Gaddafi if he gives up power. Former UK foreign secretary Sir Malcolm Rifkind said: ‘This isn’t about the British position or the NATO position – it’s about what the Libyans themselves want and can live with.’ He told BBC Radio 4 Today programme: ‘It is their country and it is their future. If they can live with a situation where Gaddafi remains in the country but is deprived of power then it is none of our business to say that is unacceptable.’
By Ingvild Vetrhus