On Monday, the General Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, officially requested arrest warrants against Libyan leader Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and Chief Intelligence Abdullah Senoussi, for the atrocities committed against innocent Libyan civilians since the outbreak of war in mid-February. In spite of the horrifying brutality of the pro-Gaddafi militias against their own population, two reasons call for the ICC not to issue these arrest warrants.
First, the Libyan situation does not need any further foreign intervention, especially if it risks triggering undesirable implications for the conflict. Second, this case shows how justice can harm peace and should sometimes be disregarded, as wrong as it may appear.
The ICC is widely criticized for being a tool of foreign intervention to judge African dictators the West does not need or want to support. In the Libyan conflict, they have taken up that same role as a judicial body in the two-month NATO-led military intervention. Why is Libya the only Arab country where the West chose to intervene?
This double judicial and military intervention in Libya conveys an odd message to world dictators. As long as you do not massively bomb your population and restrain the crackdown to “small-scale” arrests, torture, and crowd-shootings during demonstrations, you are not likely to be internationally prosecuted.
The West's double standard in dealing with dictators, according to its own interests, tarnishes its credibility as a global human rights and democracy defender. Moreover, if the arrest warrants against Gaddafi and his two right-hand men boost their willingness to struggle for power, Libyan citizens will consider the West responsible for radicalizing the conflict, instead of putting an end to it. International justice and politics are always intertwined. Political and social contexts, as well as popular sentiment, should be taken into account while promoting transitional justice in post-conflict areas.
Issuing an arrest warrant against a leader in office during an ongoing armed conflict is at best irrelevant, if not dangerous. This is the perfect example of the “peace vs. justice” dilemma and it illustrates how justice can impede peace. In this case, Gaddafi and his clan are more likely to hold onto power if they do not have a back-door exit. He is less likely to surrender or flee if he knows that he will face an international trial. Besides, pressing charges against Gaddafi will not facilitate his arrest.
The example of Sudanese President Omar al-Bashir is a perfect case in point. The ICC issued an arrest warrant against him in 2008, and to this day he remains in office while the international community continues to deal with him, particularly organizing the referendum in South Sudan last January. The ICC only further wrecked its credibility by issuing a warrant against a leader impossible to arrest and without any positive implications. Because peace prevails over justice, the international community has implicitly admitted the irrelevance of the arrest warrant against al-Bashir by supporting a peaceful referendum.
Obviously, sacrificing justice for peace by offering impunity to war crimes perpetrators is morally wrong. But disregarding justice could put an end to the conflict, facilitate a ceasefire, and urge the leaders to leave. The West should not forgo peace just to relieve its guilt of inaction when the crimes were being committed. Issuing an arrest warrant destroys the option of ending violence through a negotiated settlement where Gaddafi would have incentives to leave.
This does not mean that the international community and justice do not have a role to play in the Libyan situation. Ideally, every perpetrator of such war crimes should be prosecuted and punished accordingly. But issuing an arrest warrant and launching an international investigation, like the one led by Judge Richard Goldstone after the 2009 Gaza war, diminishes the crucial margin of maneuvering entitled to the international community. Such an international commission will establish facts and responsibilities, while awaiting the cessation of armed combats, enlightening the judges over the relevance of a prosecution.
So we can only hope that the ICC judges will bear in mind that dispensing justice is not the only matter at stake and make the right choice by rejecting the Prosecutor’s request. Because at the end of the day, isn’t saving innocent civilian lives the supreme objective?
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