Is a Libya without justice and without Gaddafi better that a Libya with Gaddafi? (Photo: Daily Sun)

In yesterday’s post, I mentioned that it is generally assumed that perpetrators of human rights violations would accept a deferral-for-peace deal. It isn’t obvious that they necessarily would.

The scenario in which Article 16, which allows the UN Security Council to freeze an ICC investigation or prosecution for a year, renewable yearly, would be used in the case of Libya would look something like this: diplomats from UN Security Council states would approach Gaddafi or members of his government, likely behind the scenes, with an offer of deferring the ICC’s investigation against him in exchange for a cessation of violence, his removal from power and perhaps his move into exile. In other words, the deal would trade accountability for Gaddafi for peace in Libya.

Some believe that the ICC can be instrumentalized in this way; that the Court can, and perhaps even should, be leveraged to achieve political ends, in this case to achieve some sense of peace and to rid Libya of Gaddafi. Others would support this scenario because they feel a Libya without Gaddafi and without justice is better than a Libya with Gaddafi being pursued by the ICC. In other words, a deferral of justice would constitute a ‘necessary evil’. Individuals with this view may also recognize that while Gaddafi can’t be brought to justice now, that does not preclude his arrest in the future. It is not that justice isn’t necessary, but that justice must follow peace. An illustrative example of this view is India’s position towards the UN Security Council’s referral of the situation in Libya to the ICC.

India declared that it would have preferred a “calibrated approach” to pursuing justice in Libya. India (as well as Gabon, Brazil and Portugal) wanted an approach which sequenced peace with justice. Yet sequencing or calibrating implies that justice will be pursued, just not necessarily immediately and not simultaneously with peace. Interestingly, there have been no negative reactions against this position from those who view that any deal that let Gaddafi off the hook would constitute a miscarriage of justice and that the resulting peace would not really be peace because there is “no peace without justice.”

An Article 16 deferral would temporarily trade accountability for peace (Photo: rssbroadcast.com)

But what about Gaddafi himself, or other individuals wanted by the ICC for crimes against humanity, war crimes or genocide? Would they accept such a deal?

Because Article 16 is fundamentally temporary and needs to be renewed yearly, it is not clear that a one-year deferral would be enough for Gaddafi to relinquish power. Increasingly common views that justice can be delayed and pursued in the future, following amnesties or deferrals, aren’t likely to inspire confidence in authoritarian leaders who would want to be assured that they will never be brought to trial or thrown in jail and not that they won’t be for the next year or two.

The result is that authoritarian leaders may have an interest in either half-complying with their side of a peace-for-deferral bargain in order to leverage future progress towards peace in exchange for continued deferrals. They could also request some type of legal assurance that the deferral would be renewed by the UN Security Council every year, although that seems a very unlikely scenario. Alternatively, they could request that an amnesty be passed, one which was recognized internationally and that did not expire.

It's not immediately obvious that leaders would accept an Article 16 deferral (Photo: Kelly Wyatt)

There seems to be something of an eery silence about the possibility of a peace-for-defferal deal with Gaddafi. The Security Council’s reference to it in Resolution 1970 (2011) makes its use more likely than many thought it ever would be. Nevertheless, there are obvious tensions and problems with the UN Security Council leveraging the ICC as a political instrument.

The international criminal justice project, buoyed by a passionate and powerful global civil society, has succeeded in making deferrals and amnesties extremely unlikely. This is not only because of pressure on the international community to refrain from deferring justice or recognizing justice but also because authoritarian leaders can no longer trust that a deferral or amnesty will be indefinitely recognized.

The use of Article 16 in situations such as Libya could have serious and detrimental effects for the ICC. The  Court draws much of its legitimacy from being an independent court where accountability is meant to be pursued and impunity ended regardless of politics. Article 16 is an explicit case of politics trumping justice. As a result, its evokation to grant temporary impunity to human rights violators may act to deligitimize the Court. Consequently, anything that prevents the use of Article 16 would help sustain the ICC’s legitimacy. Somewhat ironically, then, the reality that authoritarian and dictatorial leaders may reject an Article 16 deferral may help the Court retain its legitimacy.