Uganda has become the first country to offer asylum, if asked to do so, to Libya’s Gaddafi. This comes at a time when ambiguity proliferates as to what fate the international community sees as necessary for Gaddafi.
A few thoughts on the subject:
1. Words matter and the offer of asylum was not an offer of exile. Exile occurs when an individual is either forcibly or voluntarily removed from his/her native country. Asylum, on the other hand, has a long legal history, and requires a state to protect and provide immunity from extradition to an individual who fears being persecuted in their native country. Much of the talk thus far has been on exile. Uganda, as well as other potential asylum destinations for Gaddafi (Chad, Mali, Niger, Eritrea, Sudan, Venezuela, Cuba and Nicaragua), however, have taken their commitment a step farther. Whether it’s far enough is another question (see below).
2. Uganda is a member-state of the ICC and its offer of asylum puts it in an awkward position given that the situation in Libya is being investigated by the Court, and Gaddafi himself is being investigated for potential crimes against humanity and war crimes. However – and this is a big however – if Gaddafi were to accept the Ugandan offer, Uganda would currently be under no obligation to detain Gaddafi.
The investigation in Libya by the ICC is currently in a holding pattern until the Court decides whether arrest warrants should be issued. My understanding is that prior to an arrest warrant being issued, no member-state of the ICC has the obligation to arrest Gaddafi.
3. In the case of Gaddafi, the offer of asylum is an implicit recognition that he has committed crimes (see comments for clarification). Yes, asylum would grant Gaddafi immunity, but immunity is only granted to those who “require” it. In other words, if Gaddafi were to be granted asylum it would be an acknowledgment that he has committed crimes. Unfortunately, this type of acknowledgment would be vastly insufficient for those who have suffered because of him.
4. It remains unlikely that Gaddafi will, in fact, leave Libya. I think that is obvious by now, although given his unpredictability, it may be wiser to refrain from guessing what Gaddafi will do next. The uncertainty about what the international community believes should be Gaddafi’s fate certainly hasn’t helped. On the contrary, the ambiguity they are exhibiting may provide incentives for him to stay in power. A conference in London with dozens of foreign ministers this past week did not rule out the possibility of allowing Gaddafi’s exile. Paul Koring observed that:
The tough talk of relentless pressure aimed to oust the unpredictable and brutal despot who has ruled Libya for 41 years didn’t entirely drown out hints of possible exile and the possibility of avoiding a war crimes trial.
Ambiguity is rife. The Guardian described the myriad of disagreements as such:
the conference hall exposed fault lines in the international community over the next vital stages: whether to arm and recognise the rebels, and whether Gaddafi might leave voluntarily if he was given a chance to take exile rather than stand trial either in Libya or at the international criminal court.
There is a very delicate and, some would say, precarious diplomatic balancing of peace and justice being conducted right now. It is obvious that numerous states, particularly Western states, would like to see Gaddafi brought to the ICC. Gaddafi, however, retains large pockets of support in numerous African states and they, amongst others, have expressed reservations over bringing Gaddafi to the Hague. The emerging compromise appears to be exile.
The problem, of course, is that the longer the international community remains ambiguous about what it sees as the appropriate fate for Gaddafi, the greater incentive he has to continue fighting. While most reports focus on the rebels, Gaddafi clearly has strong backing from many Libyans as well as the money to fund soldiers and perhaps even mercenaries. Orthodox conflict resolution theory suggests that when conflicts cannot be exhausted by the complete victory of one side over another, a negotiated settlement with power-sharing provisions should be sought. Paradoxically, then, the more Gaddafi illustrates his might, the more support he will gain for either a negotiated settlement in which he retains power or a negotiated settlement in which a close of ally (perhaps his son Saif?) shares power and he gets a cozy villa to retire in.
5. Like amnesties, the granting of asylum doesn’t travel well. If Gaddafi is granted an asylum in Uganda, for example, this does not guarantee that it will be respected elsewhere. If he were to leave Uganda, it would be the prerogative of the state (or perhaps its obligation if that state were a member of the ICC and an arrest warrant against Gaddafi had been granted) to detain him. Would Gaddafi accept such a deal? It may depend on his willingness to spend the rest of his days in Uganda or any other state willing to offer him asylum. But it may also depend on the international community. As discussed in an earlier post, the UN Security Council Resolution referring the Libyan situation to the ICC included a preambular reference to Article 16 of the Rome Statute, which allows the Security Council to defer an ICC investigation or prosecution for 12 months, renewable yearly. The international community, for better or worse, set itself up perfectly to negotiate impunity for Gaddafi.
While no context perfectly mirrors another, Gaddafi will surely recall the case of Charles Taylor, the former Liberian warlord now on trial at the Special Court for Sierra Leone, who was offered asylum in Nigeria after a warrant was issued for his arrest. His holiday of impunity, however, lasted only two years, after which Nigeria agreed to extradite Taylor to Liberia. He eventually found himself in front of judges in the Hague where he is in the final stages of his trial. Gaddafi may thus view even the offer of asylum as insufficient. If so, will the Security grant him a deferral and respect his asylum?
What all of this means for Libya, for Libyans, for the ICC and for the fragile coalition of states remains unclear and any posited effects remain pure speculation. Nevertheless, it’s a fascinating time for those of us interested in the ever dramatic dynamics and politics of peace and justice.
On Point 3, is this right? Surely asylum involves only the implicit recognition that an individual has reasonable grounds for fearing persecution in their home nation? Otherwise it would mean that every time someone was granted asylum for fleeing, say, homophobic attacks, this would amount to an admission that they had committed some crime and that the persecution was materially related to some wrong they had done.
Thanks for the comment Pablo.
I thought about this for a while, and perhaps should have made the distinction more clear.
Asylum presumes that the person has done something against the rules of the country from which they are fleeing. Most of the time, these rules are oppressive so people seek asylum for good reasons or as you say, because they have reasonable grounds for fearing persecution. In your example of someone fleeing homophobic attacks, they receive asylum, presumably because the ‘rules’ or laws of the state which they flee are oppressive. In the case of Gaddafi, the rules that he allegedly broke are human rights and humanitarian law. If Gaddafi requires asylum, presumably he requires it because he is a leader investigated by the ICC and targeted by a coalition for the acts that he has committed against his own people. The offer of asylum thus implicitly acknowledges he has committed crimes against humanity or war crimes.
Fair enough, but that presumes a lot. Moreover, it underlines that it is the specific circumstances of this particular individual that involve criminality of some sort (in whatever jurisdiction), not the fact of asylum.
On the broader issue, I’m not convinced that ‘rules’ are implicated. You could be persecuted for your identity in all sorts of ways and be granted asylum even if the laws of the country in question formally protected you from such wrongs.
Will be interesting to see how it pans out though..,
Fair enough. Hopefully it’s clear what I meant and that the acknowledgment of criminality is meant only to apply to the context of Gaddafi and Uganda’s offer of asylum.
What I meant by rules was that they were necessarily laws, but circumstances where, like you say, you are formally protected but still persecuted. Rules, I suppose, isn’t the proper word.
My feeling (and nothing more) is that he wouldn’t accept asylum in Uganda. If he isn’t arrested or killed, I think Gaddafi will choose a non-member state of the ICC and a bigger country where he can become emblematic of some cause or another against the West. Because he’s been a symbol of pan-Arab and pan-African movements, I think he would prefer to remain in northern Africa. It’s all speculation, but Sudan fits the bill on all counts.
Asylum is granted to those who are seeking protection for fear of persecution in their countries of origin. It has nothing to do with whether a person committed a crime in that country or not. Usually, asylum seekers have to fill a number of aplications and provide testimony and possibly evidence that could substantiate their claim for a request of Asylum. This application then should be vetted by an independent/government Board. Most of those that are successful in their applications then are provided official refugee status. Increasingly having committed gross violations of human rights is a reason for countries not to grant asylum to someone but of course the Government of Uganda could unilaterally take the decision to allow Gadaffi to reside in the country but it wouldnt necessarily be under the international legal mantel of asylum law.
Thanks very much for your comment. Your insight is greatly appreciated.
I understand that applying or granting asylum, as you say, has nothing to do with whether the person seeking asylum has committed a crime or not in their country of origin. My point, however, as it relates specifically to Gaddafi, is that there is an indirect or implicit recognition that he has committed crimes. If Gaddafi had not committed crimes, why would any state grant him asylum? I may be presuming too much, but I believe he would accept asylum in order to “protect” him from being tried at the ICC.
This is similar to granting amnesties for past human rights violations. If someone is granted an amnesty for human rights violations, the amnesty is a recognition (however indirect) that those human rights violations occurred. Without those violations, an amnesty would be unnecessary. Likewise, if asylum is required or requested for some reason (in this case to evade charges of crimes against humanity and war crimes), then the offer of asylum is a recognition that those crimes likely occurred.
Perhaps I should make this more clear and I may in an upcoming post since it has brought significant confusion.