Waiting: a Libyan rebel stands as wreckage caused by a NATO attack burns behind him (Photo: Reuters)

While diplomats from all interested parties may not be willing to describe it as such, the crisis in Libya has reached the negotiation phase. Foreign ministers crisscrossing around the world, dropping in on various national capitals, testing the waters by suggesting things like “Gaddafi can stay in Libya but not in power” and “he can be in an adjacent room during negotiations” – all of this is setting the table for the parameters of negotiations and setting the tone for what now appears to be an inevitable series of peace talks between the Gaddafi regime and the rebels’ National Transitional Council (NTC).

On some level, it is hard not to welcome peace negotiations in Libya with open arms and optimism. The crisis has dragged on for four months now and, should it continue to drag on, the only obvious and predictable dynamic will be that every day more Libyans will be killed and more of the country will be destroyed. To all parties involved, from NATO to the AU, the rebels and pro-Gaddafi forces, the only way this spiral of violence can be arrested is by negotiating a resolution to the conflict.

But the emergent zeal for a negotiated settlement also carries with it less optimistic elements. First of all, even if Western diplomats won’t admit it, the enthusiastic mobilization for peace talks means that the international community has lost confidence in the ability of the rebels to emerge victorious, even with NATO support. This may be because they believe the rebels are inherently incapable of successfully taking over Tripoli or because the sun is setting on NATO’s mission in Libya. As has been reported, tensions and cleavages have quickly emerged within NATO powers and amongst its regional allies. Regardless, the result, it would seem, is that the international community believes that some form of power-sharing agreement between the rebels and Gaddafi’s regime must be negotiated.

It is in this context that the waters are being tested for peace negotiations and the boundaries of potential negotiations are being drawn. The most pressing boundary is the role of Col. Gaddafi in the negotiations and his fate once talks have concluded. Both the rebels and the Western powers have drawn their line in the sand: Gaddafi cannot directly partake in negotiations nor can he remain in power following a resolution to the crisis.

The only guarantee, if the crisis in Libya continues, is that people will lose their lives and the country will continue to be destroyed (Photo: AP)

What to do about justice? As I have argued previously, to date there was no evidence that the ICC was in tension with peace in Libya. But with the onset of peace negotiations, the potential tensions between peace and international criminal justice become more obvious, clear and precarious.

In Libya, these tensions have begun to emerge on four levels:

1. Let’s Get this Straight: The Contradiction of Western Power Positions

A number of Western states involved in the conflict, notably France and Britain, have begun to refine their “exit solution” for Col. Gaddafi, saying that while he cannot be allowed to retain power, he may be allowed to remain in Libya.

Meanwhile, these governments have declared that Gaddafi must be arrested and brought to the Hague – although, dubiously, never in the same statements regarding peace negotiations. They were at the vanguard of the UN Security Council’s resolution to refer the situation in Libya to the ICC. It bears asking whether the persuasion of states like the UK and France in support of the referral was the result of a desire to instrumentalize the Court in efforts to put pressure on and marginalize Gaddafi rather than because of any steadfast conviction of the need to bring Gaddafi to justice. Regardless, by simultaneously holding these two contradictory and apparently mutually exclusive positions, these governments undermine the pursuit of international criminal justice.

A man grieves after identifying the body of his brother, killed in Benghazi (Photo: AP)

2. Negotiating Amnesty or Exile

It is virtually a given that any negotiations with Gaddafi’s regime will require discussions regarding an amnesty for him, his son and his intelligence chief, all of whom are indicted by the ICC. Both France and the UK are being coy with their words when they say “Gaddafi can stay in Libya”. What they are omitting, for obvious reasons, is that this will require Gaddafi receiving an amnesty for any alleged crimes he has committed. In this sense, those involved in granting Gaddafi amnesty or exile undermine international criminal justice, as above. While the international legal standing regarding the provision of amnesties for crimes remains very much unclear, the notion of providing amnesty to “those most responsible” like Gaddafi, not to mention someone already indicted by the ICC, is anathema to international criminal justice.

3. Power-Sharing and Justice

Power-sharing agreements remain the orthodox end-game of peace negotiations. As demonstrated in some depth in an earlier post, the hope is that power-sharing can reassure previously conflicting parties about key issues concerning the control of and access to economic resources, political power and security. It is argued that power-sharing is particularly necessary where the social fabric of a society has sharp ethnic, religious, regional, or other, tensions.

In a recent paper, Power-Sharing and Transitional Justice: A Clash of Paradigms, Stef Vandeginste and Chandra Lekha Sriram (2011) argue that the paradigms of post-conflict power-sharing and accountability clash. Where conflicts have included mass atrocities, amnesty laws or rich offers of exile to perpetrators are often included as an incentive to some, or all, parties in the power-sharing arrangement. Perpetrators of crimes may end up in influential political, social and economic positions, allowing them to retain – if not expand – their power and thus their ability to thwart attempts to bring them to justice. Further, arresting such individuals once they occupy and entrench themselves in significant positions of power may have profoundly more destabilizing effects than detaining them in the chaos of the moment of transition, prior to a negotiated process.

A child, bearing a rifle is lifted above a crowd organized in support of Gaddafi (Photo: AP)

4. The Others: What of Saif al-Islam Gaddafi?

There has been a long silence about the fate of Gaddafi’s son and his intelligence chief. On some level, this is to be expected: it is not unusual that the complexity and responsibility of entire conflicts become associated with one individual. In the popular imagination, Sierra Leone is all about Charles Taylor; Uganda is all about Joseph Kony; Nazi Germany is all about Hitler. Few outside of those with keen interests in history and international justice remember the faces, let alone the names, of Foday Sankoh, Vincent Otti and Herman Goering.

On the other hand, the prevalent ignoring, in particular, of Saif al-Islam Gaddafi is curious. Prior to the indictments issued against the Tripoli Three, many diplomats in the hallways of Western capitals suggested that Saif al-Islam could be the leader of a transitional government in Libya. They saw him as the “moderate Gaddafi” and someone they could do business and politics with. Many expressed concern and disappointment when ICC Prosecutor Luis Moreno-Ocampo issued an arrest warrant for him.

The question that arises and that international diplomats, governments and the Libyan rebels pushing for peace negotiations in Libya must answer is: what about Saif al-Islam? Does he lead the negotiations for the Gaddafi regime? Can he be in the room?

My hunch is that all of these parties continue to see Saif al-Islam Gaddafi, the de facto number two in Libya, as someone they can negotiate with. The rebel’s National Transitional Council (NTC) has made no demands that Saif al-Islam be excluded from negotiations. If a power-sharing agreement is brokered, it seems entirely possible that Saif al-Islam would represent one side of that agreement. And perhaps that is the greatest danger to international criminal justice and the ICC. If Saif al-Islam becomes a prime minister or minister in a transitional government, it would be a huge slap in the face for the Court and for international justice.

Negotiating With Evil

It is not an easy thing to decide whether to negotiate with evil. There are costs and benefits to choosing to negotiate with perpetrators of mass atrocities and there are also difficult moral questions. The case of Libya is, and will be, a case in point. After the issuing of arrest warrants for the Tripoli Three, something that many ICC supporters saw as an incredible achievement for international criminal justice, the next few weeks and months may include developments that are difficult to swallow. As the Libyan crisis shifts from warfare to peace negotiations, real tensions and dilemmas between peace and justice may indeed emerge.