In­ter­na­tional Crim­i­nal Court in­dicts Gad­hafi: So what?

The Washington Times Weekly - - Commentary -

Last week, In­ter­na­tional Crim­i­nal Court (ICC) pros­e­cu­tors an­nounced that they in­tend to in­dict Libyan dic­ta­tor Moam­mar Gad­hafi on an ar­ray of charges, in­clud­ing war crimes and crimes against hu­man­ity. Gad­hafi’s regime im­me­di­ately dis­missed the ICC in­ves­ti­ga­tion as im­pe­ri­al­ist pro­pa­ganda.

For pos­si­bly bet­ter, but likely for worse, ICC crim­i­nal war­rants, or at least the threat of war­rants, are now a weapon in the Libyan Civil War.

Threat­en­ing in­dict­ment gives diplo­mats a ne­go­ti­at­ing tool. Go, Gad­hafi, be­fore you are in­dicted. As a psy­cho­log­i­cal weapon, crim­i­nal war­rants em­pha­size the tyrant’s per­sonal re­spon­si­bil­ity for the regime’s most griev­ous crimes and un­der­score his sta­tus as an in­ter­na­tional pariah.

The po­lit­i­cal mes­sage to Gad­hafi loy­al­ists is not par­tic­u­larly sub­tle: Now is the time to aban­don the dic­ta­tor and make your own deal. Pro­vide ICC in­ves­ti­ga­tors with more hard ev­i­dence, and the court may re­ward you with im­mu­nity or le­niency. Why, wink, wink, you might con­sider launch­ing a coup d’etat and serve as the ICC’s ar­rest­ing au­thor­ity.

Ev­ery district at­tor­ney in Amer­ica knows the trick. It’s a way to di­vide a gang, stir doubt among gang mem­bers and fur­ther iso­late the DA’s main tar­get, the gang leader.

An Amer­i­can DA, how­ever, has po­lice SWAT teams to en­force the rule of law, even on the gang’s home turf. The DA also has firm ju­ris­dic­tion. But in Libya’s grim sit­u­a­tion, which the ICC in­tends to in­flu­ence, Gad­hafi re­tains suf­fi­cient guns and money to con­trol of a hefty chunk of turf where his whim is law.

Which leads to the down­side of ac­tual ICC in­dict­ments filed and pur­sued in the mid­dle of an un­re­solved war. ICC le­git­i­macy is un­cer­tain. Libya, like many coun­tries (in­clud­ing China, In­dia and the U.S.), does not rec­og­nize ICC ju­ris­dic­tion. In­stead of sowing divi­sion, ac­tual in­dict­ments could unite loy­al­ists if they con­clude fight­ing is prefer­able to prison. Ac­tual in­dict­ments, if they are re­spected, limit diplo­matic so­lu­tions, such as ex­ile in ex­change for quit­ting power. Gad­hafi’s buddy Venezue­lan tyrant Hugo Chavez might still give him a bolt-hole with great beaches, but an ICC wanted poster makes that op­tion more iffy.

Crit­ics of ICC law­fare dur­ing war­fare ar­gue that ICC war­rants have hin­dered diplo­matic so­lu­tions to Uganda’s war with the Lords Re­sis­tance Army (LRA) and thus pro­longed it. In 2005, the ICC in­dicted LRA se­nior com­man­der Joseph Kony for nu­mer­ous crimes, in­clud­ing mur­der and sex­ual en­slave­ment. Kony is guilty, but the bat­tle­field is big­ger than the court­room. Since 2006, peace ne­go­ti­a­tions have floun­dered, with Kony’s in­dict­ment a ma­jor is­sue.

In 2009, me­di­a­tors re­ported that Kony wanted a peace deal, but it must guar­an­tee he would not be pros­e­cuted by the ICC. No dice. The ICC stuck to its war­rants. Uganda, which orig­i­nally en­cour­aged Kony’s in­dict­ment, has in­di­cated it will ig­nore the war­rants if Kony

Bashir is guilty, but the Dar­fur war grinds on while he sells oil to China and trav­els with rel­a­tive free­dom. Bashir has turned his ICC charges into a Third World cause celebre. He touts his in­dict­ment as an ex­am­ple of U.N. and west­ern im­pe­ri­al­ism. Gad­hafi’s pro­pa­gan­dists now echo Bashir’s tout.

sur­ren­ders.

ICC ad­vo­cates con­tend this un­der­mines the court’s au­thor­ity, and it does. ICC crit­ics say the tan­gled sit­u­a­tion demon­strates the lim­ited util­ity and po­ten­tially dele­te­ri­ous ef­fects crim­i­nal in­dict­ments cre­ate in com­plex on­go­ing tribal conflicts and civil wars. Mean­while, LRA thugs at­tack de­fense­less cen­tral African vil­lages and in­no­cents die.

As for ridi­cul­ing ICC au­thor­ity, thugs pro­tected by armed forces al­ready sneer, Su­dan’s pres­i­dent Omar al-Bashir be­ing the most ob­nox­ious scofflaw. Pros­e­cu­tors as­sert Bashir im­ple­mented “a plan to de­stroy in sub­stan­tial part the Fur, Masalit and Zaghawa groups.” Trans­la­tion: Bashir is guilty of geno­cide in Su­dan’s Dar­fur re­gion.

Bashir is guilty, but the Dar­fur war grinds on while he sells oil to China and trav­els with rel­a­tive free­dom. Bashir has vis­ited Dji­bouti since his in­dict­ment. No ar­rest. And no con­se­quences for no ar­rest. Bashir has turned his ICC charges into a Third World cause celebre. He touts his in­dict­ment as an ex­am­ple of U.N. and west­ern im­pe­ri­al­ism. Gad­hafi’s pro­pa­gan­dists now echo Bashir’s tout.

The ICC’s lim­ited threat to Gad­hafi ac­tu­ally has two sources: NATO air­craft and the Libyan rebels grow­ing com­bat power. The un­re­solved war is Gad­hafi’s real court­room. Un­til Gad­hafi’s army sur­ren­ders or launches a coup, the dic­ta­tor’s war­fare will ren­der ICC law­fare an ex­er­cise in rhetoric, not jus­tice.

Austin Bay is a na­tion­ally syn­di­cated colum­nist.

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