The scene of own goals in peace efforts

A one-day summit attended by Nato and other leaders last Friday in Turkey asked United Nations special envoy, Abdul Elah al-Khatibe  to negotiate a peace deal with Col Gaddafi that could see the Libyan leader stay in the country after stepping down. But by previously bringing charges against Gaddafi in the International Criminal Court (ICC), a devastating own goal might have already been scored against any efforts at a negotiated settlement.

To what extent the ICC and other instruments of international law have become rather a hindrance than help in international peace efforts and negotiated settlements in conflicts, is well argued by George Friedman in a July 11 article for Stratfor: “The current structure of international law, particularly the existence of the ICC and its rules, has an unintended consequence. Rather than serving as a tool for removing war criminals from power, it tends to enhance their power and remove incentives for capitulation or a negotiated exit.

“In Libya’s case, Gaddafi’s indictment was referred to the ICC by the UNSC, and he was formally indicted in late June. The existence of the ICC, and the clause that says that it has jurisdiction where signatory governments are unable or unwilling to carry out their own prosecutions, creates an especially interesting dilemma for Gaddafi and the intervening powers.

In the Libyan situation matters are further complicated by the fact there is ample ground for a case to be made out that the Nato-forces on a number of scores are themselves on the wrong side of the law.

By the premature filing of charges against Gaddafi the ICC has become an international political football. Further illustrated by the fact that the dictator himself is well aware of this and willing to play Nato at their own game, is that his daughter has filed a war crimes lawsuit of their own in Paris and Brussels over the alleged assassination of four of the Libyan leader’s family members in an illegal attack on a civilian target in Tripoli.

Aisha Gaddafi is herself an attorney and was part of the defense team of the late Iraqi dictator Saddam Hussein.

Referring to the cases of Slobodan Milosevic of Yugoslavia and of Radovan Karadzic, the Bosnian Serb political leader, Friedman argues that leaders like Gaddafi could not be expected to place trust in assurances from the West regarding non-prosecution.

“He has no motivation to capitulate, since that could result in him being sent to The Hague, nor is there anyone that he can deal with who can hold the ICC in abeyance. In most criminal proceedings, a plea bargain is possible, but this is not simply a matter of a plea bargain.

“Regardless of what a country’s leader has done, he or she holds political power, and the transfer of that power is inherently a political process. What the ICC has done since 2002 — and the ICTY to an extent before that — is to make the political process moot by making amnesty impossible.

“It is not clear if any authority exists to offer and honour an amnesty. However, the ICC is a product of the United Nations, and the authority of the United Nations lies in the UNSC. Though there is no clear precedent, there is an implicit assumption that the UNSC would be the entity to offer a negotiated amnesty with a unanimous vote.

“In other words, the political process is transferred from Libya to the UNSC, where any number of countries might choose to abort the process for their own political ends. So the domestic political process is trumped by The Hague’s legal process, which can only be trumped by the UNSC’s political process. A potentially simple end to a civil war escalates to global politics,” he writes.

Under the present circumstances, and in the apparent standoff between a judicial process and political realities, the chances of ending the bloody war in Libya soon via a negotiated settlement, looks pretty slim.

In the words of Friedman: “The desire for justice is understandable, as is the need for an independent judiciary. But a judiciary that is impervious to political realities can create catastrophes in the name of justice.

“In both the Serbia and Libya cases, ICC indictments were used by Western countries in the midst of bombing campaigns to legitimise their humanitarian intervention. The problem is that the indictments left little room for negotiated settlements.

“The desire to punish the wicked is natural. But as in all things political — though not judicial — the price of justice must also be considered. If it means that thousands must die because the need to punish the guilty is an absolute, is that justice? Just as important, does it serve to alleviate or exacerbate human suffering?”

Maybe because, among others, the United States is well aware that the terms of justice at the end of conflicts is mostly determined by the victor it has decided to recognise the rebel Transitional National Council as the “legitimate governing authority” for Libya.

It might also explain why it is reported about the peace initiative started in Turkey that Britain and the United States remain sceptical.

Britain’s official position, is that it has a “strong preference” that Col Gaddafi be handed over for trial at the International Criminal Court, which has indicted him, his son Saif al-Islam and his security chief Abdullah al-Senussi for war crimes.

According to a report in The Telegraph in London the “added firepower Britain is promising, along with the extra money that might be on its way, will be welcomed by the TNC, which claims rebel-held areas are suffering severe shortages. It is also demanding more help from Nato to push its military campaign forward.

“It said it did not expect a ceasefire until after Col Gaddafi had been defeated.”

But what is also becoming a reality is that the ICC and broader regime of international justice, and how it is used as a bargaining chip in conflicts and to what extent it deals evenhandedly with all sides in those conflicts is itself on trial in the Libyan Desert.