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Will Gaddafi Face Justice?

By Simon Jennings

Simon Jennings

The prosecutor at the International Criminal Court, Luis Moreno Ocampo, has asked judges to issue arrest warrants for Libyan president, Muammar Gaddafi, and two other senior Libyan officials.

IWPR’s international justice reporter, Simon Jennings, assesses the likelihood of Gaddafi and his henchmen being brought to justice in the event of formal charges being issued.  

Who is implicated in the prosecutor’s request for arrest warrants and what charges could they face?

The prosecutor is seeking arrests warrants for Gaddafi and his inner circle, including his second eldest son, Saif al-Islam Gaddafi and his brother-in-law Abdullah al-Sanousi, the head of Libya’s military intelligence. Ocampo says he has gathered direct evidence of widespread and systematic attacks against civilians by the Libyan regime since February 15, 2011. The allegations constitute crimes against humanity - specifically the orchestrated murder and persecution of civilians.

The prosecutor says he has evidence of meetings between the three men to plan attacks on demonstrators, civilians in their homes as well as the use of heavy artillery against funeral processions. Ocampo also told how the Libyan regime prepared lists of names of dissidents who were rounded up, imprisoned and tortured.

“These are not just crimes against Libyans, they are crimes against humanity as a whole,” the prosecutor said, addressing the media on May 16.

Ocampo said his office would also be investigating the two sides in the conflict for war crimes, since clashes broke out at the end of February. He said he would look into alleged incidents of rape as well as attacks by rebels against sub-Saharan Africans mistakenly thought to be mercenaries. The prosecutor is also in touch with the United Nations Human Rights Council which will publish its report into Libyan atrocities on June 7.  

What happens next?

A bench of three ICC judges will now review the evidence presented by the prosecutor. They can either issue arrest warrants, dismiss the prosecutor’s request, or ask him to provide more evidence to support the arrest warrants. It is difficult to say how long this process might take and in the past ICC judges have dithered over the level of evidence required to issue an arrest warrant.

The arrest warrants for the only other sitting head of state charged by the ICC, Sudanese president Omar al-Bashir, took eight months to be issued and then judges added genocide charges a further 15 months after that. However, other arrest warrants have been drawn up within one or two months.

It is thought that in the Libya case, judges will want to act swiftly given the current international attention and the Security Council’s desire for timely action. If arrest warrants are granted, the court will also want to bring Gaddafi to The Hague before he is killed by NATO airstrikes or has the chance to slip into exile. According to Ocampo, his evidence is “so strong” and his team is almost ready for a trial.

Is the prosecutor’s move likely to deter the Libyan regime?

The prosecutor’s request and, if granted, the arrest warrants are unlikely to have any immediate deterrent effect on the Libyan regime. Libya's deputy foreign minister, Khaled Kaim, has already dismissed the potential warrants. As Libya is not a member of the ICC , its government does not see itself bound by the court’s decisions. However, as a UN member it is bound to cooperate with the court due to the original referral by the Security Council.

Some fear arrest warrants could actually have a detrimental effect on any efforts to negotiate with Gaddafi and limit the possible safe havens open to him if he were to stand down. Some have questioned the prosecutor’s strategy of requesting an arrest warrant publicly when, it may be argued, Gaddafi could have been forced into exile and then surprised by a sealed arrest warrant and apprehended.

While the UN resolution referring the conflict in Libya to the ICC urges all UN states to cooperate with the court, they are not legally bound to do so and it seems unlikely that there would be no state willing to accept Gaddafi. Bashir has benefited from the hospitality of several UN states who remain hostile to the ICC and it is possible to see Gaddafi doing the same.

If certain states do prove sympathetic to Gaddafi, there is little the ICC can do but appeal to the Security Council. Since indicting suspects in Sudan, the court has reported Khartoum’s non-compliance as well as visits by Bashir to other UN and ICC member states to the Security Council. However, the latter has done nothing about it. Some of its permanent members, critics would argue, are more concerned with political issues such as the smooth secession of South Sudan than with supporting international justice. 

Who will apprehend Gaddafi and his henchmen if judges go ahead and issue arrest warrants?

Issuing arrest warrants is one thing, but actually bringing Gaddafi to The Hague would not happen overnight. The ICC doesn’t have its own police force so would be entirely reliant on states - in this case the Libyan regime itself - to arrest any suspects. The ICC has long been a court that has struggled to deliver suspects to The Hague. It has had arrest warrants outstanding for Bashir; his former deputies and commanders of Uganda’s rebel Lord’s Resistance Army, since 2009, 2007 and 2005 respectively.

None have been apprehended and the Sudanese government continues to wage a campaign of violence in Darfur.

Arrest warrants against Gadaffi and his henchmen are unlikely to be acted upon for as long as he’s in power. If the regime falls, the incoming government could well hand the potential suspects over to the ICC.

As for getting assistance from NATO in apprehending suspects, the prosecutor has so far not requested any – but even if he did there are question marks over whether it could effect arrests.

While UN resolution 1970 urges international organisations to cooperate with the ICC, the follow-up resolution 1973 limits NATO’s engagement to being from the air which would seem to preclude the possibility of an arrest. Some also believe that Gaddafi’s arrest is not sanctioned under resolution 1973 as part of its ultimate goal of protecting civilians.

In the longer term, things look bleaker for Gaddafi and his comrades than for others charged by the ICC. While Bashir has openly traveled to other African and Arab states, the support these regions have given to international intervention in Libya will leave the Libyan suspects with little room for manoeuvre.

The African Union has actively sought to defer the case against Bashir, however, it has not dissented to the actions of the international community over Libya.  

Does this set the tone for the ICC intervening in other states in the Middle East?

None of the states in the region that have reacted violently to popular uprisings are signatories of the ICC, so the court is unable to investigate atrocities there. As was the case with Libya, the Security Council could refer other cases of violent suppression to the ICC. However this looks unlikely as even where the violence has reportedly been on a similar scale, for example in Bahrain or Syria, the Security Council have been unable to agree on such action.

Three of the Security Council’s permanent members - the US, China and Russia - have not signed up to the ICC and other organisations such as the Arab League - whose condemnation of the situation in Libya was seen as an important precursor to the Security Council’s intervention there - have also been less forthcoming in their criticism elsewhere.

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