How the Hague-based International Criminal Court does and doesn't change the Libyan leader's calculus
The International Criminal Court has issued arrest warrants for Libyan leader Muammar Qaddafi, son and presumed successor Saif Qaddafi, and military intelligence chief Abdullah Senussi. The warrants are for alleged crimes against humanity from February 15 through 20; the "day of rage" that began Libya's protests and then civil war was on February 17. But, beyond serving principles of international justice, will the move mean anything for the more pressing issue of Libya's civil war, which has devolved into a bloody stalemate? What does it mean to issue an arrest warrant for a sitting head of state, anyway?
As long as Qaddafi clings to power, it doesn't mean much. The ICC relies on member states to actually perform arrests. The Hague-based court can issue all of the warrants and indictments it wants, but it only has effective jurisdiction in countries that have both signed and ratified the treaty recognizing the court and its authority. The court issued an arrest warrant in 2009 for Sudan's President Omar al-Bashir, who today is still in office So, in practice, an ICC arrest warrant can be little more than a lifelong ban against traveling to certain countries.
This map, via Wikimedia commons, shows the ICC's global membership. The countries in green are party to the ICC and are legally required to arrest Qaddafi; countries in orange signed but didn't ratify the treaty and have no obligation to arrest the Libyan leader for an ICC warrant. Neither do the countries in gray, which do not recognize the court.*
Qaddafi, son Saif, and brutal intelligence chief Senussi will probably never again visit the green countries. The European nightclubs and art museums of which Saif was so fond will forever be off limits; Qaddafi's jaunts across the continent he'd dreamed of leading will be much shorter. But, as long as they remain in orange and grey states, the warrants will make little difference. And the green states might not even be categorically off limits. After Bashir's arrest warrant was issued, the Sudanese leader traveled to ICC member state Chad without issue. It's not enough that a state recognizes the court -- it also has to choose to make the arrest. Qaddafi, who had deepened his influence in Sub-Saharan African by funding many of the post-colonial revolutionary groups that later took power, could probably get away with visiting much of the continent safely.
But there's more than just travel at stake. Though Qaddafi has pledged to stay in Libya until his death, Libyan rebel groups and Western powers are planning -- or at least hoping -- that he will eventually admit defeat and flee the country. The warrants limit where he could go. Qaddafi's rule has often appeared to be about serving his family; so too will it likely be in retirement. If he decided to step down, the self-declared Bedouin leader probably wouldn't mind pitching a tent in, say, Mauritania. But his wealthy, Westernized children, who have spent much of their lives in posh European hotels, are going to have a hard time accepting anything less than five stars. Normally, that might mean a one-way ticket to Dubai, but Qaddafi's failed plot to kill a member of the Saudi royal family has left him unwelcome in much of the Arabian Peninsula. Restricting Qaddafi's ability to pack up the family Gulfstream and head to Monaco, for example, might make it more difficult for him to accept any peace deal that requires him to leave the country, as it probably would.
In the end, however, even Qaddafi's retirement home is
negotiable. If Qaddafi offers to step down in exchange for immunity from
the ICC arrest warrant, he can probably find a member country --
Venezuela, for example, or South Africa -- that would be willing to
ignore the warrant. Ultimately, the arrest warrant is likely to serve as
little more than another bargaining chip in any negotiations over
ending Libya's civil war. That's a good thing -- as fighting worsens and
civil society degrades, anything that makes peace more likely is
essential -- but it's not quite international justice in the legal sense
of the term.
* This post originally stated that countries that are not party to the ICC cannot arrest Qaddafi on an ICC warrant. In fact they can, but are under no legal obligation to do so. Thanks to Jelena Pia-Comella of the Coalition for the International Criminal Court, who writes, "While there have been few arrests to date, there is nothing preventing a non-State Party from making an arrest."