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.