BY James A. Goldston
This commentary was published in The Foreign Policy on 16/05/2011
As the conflict in Libya drags on, with a swift military solution looking increasingly less likely, the International Criminal Court (ICC) has now launched its bid to hold Muammar al-Qaddafi accountable for his crimes.
The ICC's prosecutor, Luis Moreno-Ocampo, announced on May 16 that he will seek the arrest of Qaddafi -- along with his son Saif al-Islam and intelligence chief Abdullah al-Senussi -- for "widespread and systematic attacks" against civilians. It remains to be seen whether ICC judges will issue warrants for the three's arrest, but the question is already being asked: Will the threat of ICC prosecution only discourage the Libyan leader from negotiating his eventual departure?
Blind fidelity to law, some say, removes a potentially valuable carrot -- amnesty -- from the negotiator's tool kit. And Libyan leaders are offering a cease-fire. So why risk prolonging a reign of terror in Libya simply for the sake of a moral ideal?
It's a fair question, but not an unfamiliar one; we make similar tactical choices every day in our own cities and towns. Take the example of kidnappers: The prospect of arrest may discourage some from giving up, extend the period of captivity for their victims, and heighten the risk of violence. But police don't let these criminals walk free. Rather, they manage the short-term risks in order to preserve the long-term deterrent impact on others of swift and sure punishment.
Is the international arena different? In fact, the accumulating experience of the past two decades shows that, though in the short run the prospect of justice may lead some teetering autocrats to cling to power -- Zimbabwe's Robert Mugabe is an oft-cited example -- the prosecution of sitting senior leaders for war crimes often speeds an end to conflict.
In 1995, ethnic cleansing had been raging for three years in Bosnia, resulting in tens of thousands of deaths, widespread rape, and massive displacement of civilians. When the U.N.-backed International Criminal Tribunal for the former Yugoslavia (ICTY) indicted two of the main perpetrators -- Bosnian Serb leader Radovan Karadzic and his military chief, Gen. Ratko Mladic -- on the eve of the Dayton peace talks, some cried foul. But the threat of prosecution did not prevent negotiators from reaching an agreement to end the war. Indeed, by keeping the indictees from attending Dayton, the charges may have helped U.S. officials find common ground among Bosniaks, Croats, and Serbs.
After Dayton, Yugoslav President Slobodan Milosevic remained in power and continued his use of violence to achieve political ends. In 1998, as conflict in Kosovo intensified and reports of atrocities by Yugoslav military and Serbian paramilitary forces against ethnic Albanian civilians proliferated, NATO launched a series of air raids against Yugoslavia to force Milosevic to halt military operations. The ICTY's indictment of Milosevic in May 1999, just as NATO's military campaign in Kosovo was under way, sparked concern that, by rigidifying attitudes on all sides, it would block a deal. But two weeks later, the war ended when Milosevic accepted the terms of a U.S.-brokered peace plan, despite the ICTY indictment. He lost power after elections in late 2000 and was handed over to U.N. custody in June 2001.
In Africa, as well, concern has arisen about the impact of a judicial process on potential or ongoing peace negotiations. Ghanaian officials were outraged when, in June 2003, the Special Court for Sierra Leone made public an indictment against Liberian President Charles Taylor at the very moment when he was attending talks in Accra aimed at ending Liberia's civil war. Although Ghana refused to arrest Taylor, the indictment made it politically impossible for him to continue as president. Two months later, he fled to Nigeria under a purported grant of asylum by that country's president, in exchange for his promise not to meddle further in Liberia's politics. In 2006, as a growing chorus of voices in West Africa and beyond pressed for his apprehension, Taylor was forced to flee his Nigerian hideout. He was subsequently turned over for trial in The Hague. Liberia is today a country at peace.
In October 2005, the ICC unsealed its first warrants of arrest, for senior leaders of Uganda's Lord's Resistance Army (LRA), which had long been accused of brutal conduct during its 20-year struggle with Uganda's government. Many Ugandans -- particularly those in the rural northwest -- were desperate to halt the fighting, but worried that the court's action would create insurmountable disincentives to peace. But just six weeks later, the LRA made public its desire to hold talks with the Ugandan government. Although those talks were never consummated and LRA leader Joseph Kony remains at large, it's widely acknowledged that the ICC's action helped isolate the LRA and permanently diminish it as a fighting force. Indeed, as the U.S. ambassador to Uganda made clear in 2006, "The ICC is not a hurdle to the talks. Instead, it is the reason why we have peace talks today."
In mid-2008, U.S. and other officials voiced concern that the ICC prosecutor's request to charge Sudanese President Omar Hassan al-Bashir for crimes in Darfur risked reigniting war in south Sudan. "[M]any diplomats, analysts and aid workers," the New York Times noted at the time, "worry that the Sudanese government could lash out at the prosecutor's move ... shutting the door to vital diplomatic efforts to bring lasting peace." Three years later, while defying the court's issuance of arrest warrants against him for genocide and crimes against humanity, Bashir has accepted the south's secession and even publicly pledged his full support for the new state.
In short, as these examples suggest, justice is often worth pursuing -- not simply for its own sake, but because it helps resolve conflicts by increasing international pressure. By delegitimizing leaders who commit crimes against civilian populations, the prospect of legal sanction may reduce their capacity for political obstruction and, as is the case in Libya, encourage subordinates to abandon ship. Such thinking may have led not only the United States, but China and Russia, to support the U.N. Security Council resolution calling for an ICC investigation in Libya, even though none of these three have ratified the court's underlying statute.
At least in the short run, justice may well complicate diplomatic efforts. Thus the timing -- if not the imperative -- of accountability may have to adjust. But the canard that international justice is quixotic, impractical, and harmful is part of a broader pattern of resistance to the movement for accountability that has emerged since the end of the Cold War. Critics have balked at the price tag (more than 100 million euros annually each for both the ICC and the ICTY), the length of proceedings (Milosevic died in his cell before judgment while the ICC has yet to complete its first trial), and the fact that its site at The Hague is too remote from the crime sites and the victims it serves.
It's true that the ICC is often not the most appropriate vehicle for judging facts and imposing sentences. There is increasing recognition that national courts -- closer to victims and witnesses, less costly, and often more widely accepted -- are preferable, when they are given the resources, the capacity, and the necessary political backing. But, as long as local courts remain unable or unwilling to put heads of state and others in the dock for grave crimes, international justice -- whether through the ICC or U.N.-backed hybrid tribunals -- will remain essential components of an emerging global accountability framework.
Perhaps that is why, despite the concerns of so-called "realists," the U.N. Security Council has referred two major crises in succession to the ICC, first Darfur and then (unanimously) Libya. Even the most hardened politicians seem to appreciate that, whatever its shortcomings, the ICC is a valuable means of addressing armed conflict. In the end, the strongest argument for some form of accountability may be to consider what a world without any would look like. It is, in fact, a world from which we have only recently emerged -- one where dictators like Idi Amin, Suharto, and Trujillo oversaw mass killings without fear of punishment.
That questions remain about how to enforce the new norm of accountability in practice is a testament to how much has changed so fast. As at the domestic level, so too in the world of diplomacy the benefits of sticking to principle multiply over time. Yes, the prospect of ICC action has not stopped Qaddafi's forces from using cluster bombs or land mines against civilians in Misrata.
And yet, over time, consistent U.S. support for Qaddafi's prosecution will bolster the credibility of the international community's deterrent for the next war criminal who threatens peace. By contrast, yielding now to tempting, if shortsighted, calls for "flexibility" in accommodating Qaddafi will give future "mad dogs" reason to believe they can get away with murder.
That is hardly in Washington's interest.
James A. Goldston, executive director of the Open Society Justice Initiative, served as coordinator of prosecutions and senior trial attorney in the office of the prosecutor at the International Criminal Court.