The ICC Arrest Warrants Will Make Colonel Gaddafi Dig In His Heels

The international criminal court wants to arrest key Libyans. With Saif al-Islam Gaddafi in the frame, negotiated peace is less likely

By Philippe Sands
This commentary was published in The Guardian on 04/05/2011

The killing of Osama bin Laden and, only days before, the killing of one of Colonel Gaddafi's son and three of his grandchildren by Nato (in an attack which apparently was targeting Gaddafi himself) raises fundamental questions. Is it ever right to execute our enemies, or should they always be tried for the crimes of which they stand accused? What if there is a possibility of striking a deal that would put an end to their crimes, but would leave past wrongs unpunished and allow the perpetrator to enjoy a comfortable retirement?

Balancing the desires for justice and retribution always gives rise to competing objectives. Nowhere is this more clear than in the UN security council's efforts to deal with Libya: in February it adopted resolution 1970, which authorised a criminal investigation at the international criminal court; in March it passed resolution 1973 which authorised "all necessary measures" to protect Libyan civilians, interpreted by some to authorise the targeting of Gaddafi.

The ICC was created in 1998 to give real force to the global rule of law by establishing a permanent court to exercise jurisdiction over the most serious international atrocities: crimes against humanity, war crimes, genocide and – eventually – the crime of aggression. Over 100 states are now parties, but some important ones have stayed out: that makes the unanimous adoption of resolution 1970 by all 15 members of the security council (including China, Russia and the US, who are not party to the ICC) all the more remarkable.

The ICC prosecutor is Luis Moreno-Ocampo, who on Wednesday reported to the security council on his investigation into Libya. As required by the ICC statute, Moreno-Ocampo – who is independent and cannot be dictated to by the security council – had to first assure himself that an investigation was justified. In early March he concluded that it was: there were "reasonable grounds to believe that crimes against humanity have been and are being committed in Libya"; no genuine national investigation was taking place; and the situation was grave, including "systematic" shootings and war crimes committed "as a matter of policy". Significantly, he concluded that an investigation would serve the interests of justice: talks about possible future deals with Gaddafi would not result in prosecutorial restraint.

Since March the prosecutor's office has conducted missions to 10 states, carrying out many interviews with anonymous sources and collecting more than 500 documents. His view is that the evidence confirms the commission of crimes against humanity – in this case, security forces attacking unarmed civilians – and war crimes. The investigation has focused on events relating to the mass killing of prisoners at Abu Salim prison. Although taking place in 1996, they have been a catalyst for the current unrest: the arrest of Fathi Terbil, one of the lawyers for Abu Salim victims, on 15 February; the ensuing protests in the square outside the Benghazi high court; and the systematic killing of civilians there.

The security council has not yet been told who will be indicted, but Moreno-Ocampo's report provides some clues: he wants arrest warrants for those "most responsible" for the crimes that have been committed in Libya since 15 February, the cut-off date imposed on him by the security council, which means he is aiming for the upper echelons. That is made clear by the reference to "massive crimes" being committed "upon instruction of a few persons who control the organisations that execute the orders". This suggests that Moreno-Ocampo, like Nato, may be getting inside information.

Although the investigation and future arrest warrants come under resolution 1970, the later resolution 1973 commits the international community to take "all necessary measures to protect civilians". That language is influencing the process: according to Moreno-Ocampo, arrests "will contribute to the protection of civilians". This narrows the likely subjects of arrest warrants to a very small handful, all of whom are already subject to asset freezes and travel bans. Colonel Gaddafi will almost certainly be among the targets. The only other person mentioned in the report is Saif al-Islam Gaddafi, who has hardly helped himself with his "no mercy" speech and is reported by some to be "orchestrating the killings".

The focus on Abu Salim prison and the Benghazi killings and Fathi Terbil's arrest points to others closely associated with those events. One leading candidate is Abdullah Senussi, who is said to be head of military intelligence and is Gaddafi's brother-in-law. Another name in the frame may be Mahmoud Al-Baghdadi, a medical doctor who serves as secretary of the General People's Committee, akin to prime minister. He will be well known to many in London as chair of the Libyan Investment Authority. If Mousa Koussa does not feature in the first tranche, he should not assume he is off the hook: whatever efforts the UK might be making to protect him.

What happens next? Very soon Moreno-Ocampo will ask for the issue of arrest warrants, which is when the names will be unveiled. A few weeks after that – probably no more than a month – some or all of the warrants will be issued. That will not stop the killings or other crimes, or make the disappeared reappear. Nor will it bring the armed conflict to an end. But it will further delegitimise the indictees and their associates, and extinguish the possibility that they might play a future role in Libyan public life. It will limit their possible places of refuge, if deals are done, since all parties to the ICC statute are bound to execute ICC arrest warrants. And it will, over time, provide information on address books and mobile phone records that might reveal that it was not only the LSE that was friendly with the Gaddafi regime.

The security council's decision to launch a criminal investigation first, and use of force second, made Gaddafi's orderly, early departure from Libya less likely. Once he was subject to arrest warrants, he was bound to dig in his heels. Some will argue that this is evidence that the international criminal justice system only targets the weak and vulnerable, or former friends who have fallen into disfavour. But the situation is as it is, and the hope must be that over the long term Libyans, facing the greatest threat to their wellbeing, will be better off when those subject to arrest warrants are permanently removed from their lives. If the ICC process contributes to that it will have done well. Having supported it, the British government and others must see it through.