Abu Salim Prison in Libya (Photo: Sergey Ponomarev/AP)

In recent years, advocates of the International Criminal Court have shifted away from justifying international justice through purely moral claims towards arguing for trial justice on the basis of the consequences it can bring about. Leslie Vinjamuri has persuasively demonstrated this consequentialist turn in a recent article. Amongst the oft-proferred arguments put forward is that the pursuit of international criminal justice can deter crimes from occurring.

Broadly speaking, deterrence can occur at two levels. First, and most broadly, international criminal justice is seen by its champions to deter crimes on an international or global level. Anyone thinking of committing crimes against humanity, genocide or war crimes now or in the future will be deterred from doing so because of the mere existence of the ICC which will prosecute and punish those very acts.

Second, deterrence may be more targeted and localized. In this instance, intervention by the ICC in ongoing conflicts is said to deter those actively committing atrocities from continuing to do so. This post is concerned with this second type of ‘targeted deterrence’ in the context of Libya.

Getting Involved at ‘Break-Neck’ Speed

The ICC has never moved more quickly in its work than in the case of Libya. In comparison to other situations under investigation, the speed with which the Office of the Prosecutor (OTP) accepted the UN Security Council’s referral, opened an investigation and requested the issuance of arrest warrants against Colonel Muammar Gaddafi, his son Saif al-Islam Gaddafi and the regime’s head of intelligence, Abdullah al-Senussi, was unprecedented.

I have previously speculated why the ICC chose to move so quickly in the case of Libya. After speaking to some individuals familiar with the Court’s decision-making, however, I am increasingly convinced that the ICC moved so quickly primarily because it wanted to establish itself as ‘a player’ in Libya. In other words, the OTP saw an opportunity to prove its effectiveness and jumped at it, full-throttle. The deterrence factor was part of the calculus: if the ICC intervened in Libya and contributed to the termination of the conflict, the Court could claim it had deterred atrocities and helped establish peace.

Now, it may be that the ICC did help prevent the perpetration of some atrocities in Libya, especially if the defections of senior Gaddafi-regime figures can be linked to fears of being prosecuted by the Court, defections which can, in turn, be linked to the duration of the conflict. As importantly, there is no evidence that the Court contributed to an increase in atrocities by pro-Gaddafi forces or the prolongation of the conflict. But what about the Court’s deterrence effect on the rebels and what about deterrence in post-Gaddafi Libya?

A Prison Guard in Misrata, Libya (Photo: Anis Mili/Reuters)

“A Climate of Impunity”

Readers are likely familiar with recent news that mass human rights violations continue in Libya and that both pro-Gaddafi and rebel groups have committed crimes during the conflict.

In February, Amnesty International released a report, ‘Militias threaten hopes for new Libya’, which details ongoing and widespread arbitrary detention, unauthorized interrogations, coerced confessions, and torture. The report further takes aim at the inability and unwillingness of Libya’s National Transitional Council to prosecute crimes committed both during and after the fall of the Gaddafi regime. Not pulling any punches, the report exclaims that:

“Despite pledges to bring to justice those who committed war crimes and human rights abuses on both sides, the authorities have so far failed to take action against suspects who fought with the NTC forces, sustaining a climate of impunity for human rights abuses…Thousands of detainees remain held in scores of detention facilities in Libya where torture is rife, resulting in several known deaths…Indeed, the failure of the authorities to even begin to investigate with a view to bringing to justice former anti-Gaddafi fighters responsible for war crimes during the conflict and human rights abuses has perpetuated the climate of impunity for such crimes.”

Similarly, the International Commission of Inquiry on Libya, set up by the UN to examine alleged crimes committed during the conflict issued it own report, declaring that:

“[Anti-Gaddafi forces] committed serious violations, including war crimes and breaches of international human rights law…[and] Breaches of international human rights law continue to occur in a climate of impunity.”

The allegations and evidence of war crimes committed by both sides and widespread ongoing human rights violations in Libya raise some uncomfortable questions for those who might be inclined to bask in the rhetoric that the ICC’s intervention in Libya has had a deterrence effect. Where is the deterrence effect now?

Imprisoned pro-Gaddafi militants (Photo: Al Jazeera)

Whither the ICC’s Deterrence Effect?

The Court’s deterrent effect in Libya appears to be heavily selective. While the ICC’s intervention may have hastened the ending of the conflict and thus deterred some atrocities from occurring, it clearly didn’t deter the rebels from committing acts which may amount to war crimes and it has done nothing to deter some Libyan militias from arbitrarily detaining and torturing former pro-Gaddafi fighters.

Of course, the ICC isn’t exactly in a great position to influence matters in Libya. The Court appears to have little clout on the ground, in no small part because it has been largely abandoned by the key NATO powers who invoked the ICC’s jurisdiction in the first place. Those same powers appear unconcerned and disinterested in the human rights violations in Libya, not to mention any role the ICC might play. For them, Libya is a “job well done”.

Yet the ICC also seems rather unconcerned. Despite suggesting that NATO would be investigated for war crimes during the conflict, it is unclear whether there has been any actual movement towards doing so. As far as I can tell, there has been no suggestion of investigating anti-Gaddafi forces.

Further, the Court has remained silent on the allegations of widespread arbitrary detention and torture. This silence needs to be broken. This does not necessarily mean opening an official investigation into the allegations levied by Amnesty International and the Commission of Inquiry. However the Court could, indeed should, publicly remind all parties involved that it retains the ability to investigate any conduct which may amount to crimes against humanity, including the arbitrary detention and torture of anyone.

In this context, it is worth remembering that the ICC’s jurisdiction in Libya is indeterminate. For all intents and purposes, the Court retains jurisdiction indefinitely, meaning that it could open up new investigations, not only into conduct during the conflict but into alleged crimes committed afterwards.

Testing the Claim

For numerous reasons, as Patrick has pointed out, deterrence remains immensely difficult to measure. Most problematically, the question of deterrence is fundamentally slanted against proponents of trial justice. As William Schabas rightly observes, “while we can readily point to those who are not deterred, it is nearly impossible to identify those who are.”

But so long as advocates of international criminal justice continue to maintain that the ICC has a deterrent effect, the claim will be measured against the empirical record. In Libya, that record is mixed – at best.