(Cartoon: Sherif Arafa, Cartoon Movement)
Few issues in international criminal justice are as contentious as the relationship between the International Criminal Court (ICC) and regime change. After all, it goes right to the heart of the tensions between humanitarianism and the messy realities of conflict resolution as well as the contradictions between intervening in the internal politics of states in the name of human rights.
But there is a case to be made that ICC’s interventions have directly or indirectly contributed to the goal of regime change. This is particularly so where a regime can be equated with the autocratic rule of an individual leader. Consider some examples.
The explicit message of indicting Muammar Gaddafi was that he was no longer fit to be head of state. The regime change equation was pretty clear: the indictment signalled that Gaddafi should be arrested and brought to justice in The Hague. That meant removing him from power. Ipso facto, the ICC was seeking regime change.
The same goes for the ICC’s indictment of Sudanese President Omar al-Bashir for his alleged responsibility in perpetrating genocide, crimes against humanity and war crimes in Darfur. The arrest warrants signalled that the ICC – if not the international community – viewed Bashir as an illegitimate head of state who ought to be removed from power.
Today, as we debate whether or not the United Nations Security Council should refer the situation in Syria to the ICC, a central – if not the central – question is whether the Security Council is prepared to support the ouster of President Bashar al-Assad.
The ICC is not unique in this case. When the International Criminal Tribunal for Yugoslavia (ICTY) indicted Serbian President Slobodan Milosevic, it did so in the hope that he would be forced out of power. Unlike in the case of Sudan, it worked and Milosevic was sent to the ICTY.
It may be that the goal of regime change is inevitably linked to international criminal justice. The belief that tribunals can marginalize and isolate indicted leaders rests on the conviction that it is desirable to reduce the power of indictees to the point where they can no longer rule. Again, where the target is a head of state, this suggests one thing: regime change.
In short, where international criminal tribunals aim – or are aimed – at sitting heads of state, their implicit aim is to knock their target from power. Whether or not that happens, of course, depends on other factors, particularly whether there is sufficient will within the international community to enforce arrests warrants and/or seek regime change via military intervention. Sometimes it happens (see Gaddafi and Milosevic) and sometimes it doesn’t (see Bashir and Assad, so far). But regime change appears to be a pre-condition for the ICC to achieve its goal of ever seeing leaders like Gaddafi and Bashir in the dock.
(Cartoon: CRO)
The words “regime change”, however, remain taboo in some international justice circles. A common refrain is that the ICC does “justice, not politics”. And regime change, after all, is fundamentally political.
Louise Arbour, the former ICTY Prosecutor who is now President of the International Crisis Group, and who also happened to have issued that arrest against Milosevic, tackled this subject in a brief article last year, entitled ‘For justice and civilians, don’t rule out regime change‘. Arbour bravely and eloquently put forth the argument that we shouldn’t shun the goal of ousting regimes because “regime change” is a dirty phrase in the world of justice and international relations. It might be the difference between being able to protect civilians from atrocities and dithering in the face of mass human rights violations. Arbour asks a very poignant question:
“If a state launches a massive criminal enterprise against its people, why should ‘all necessary measures’ fall short of disabling those responsible, including by forcibly removing them from power?”
So why are we so afraid to utter “regime change” in the same breath as “international criminal justice”? The predominant reason, it would seem to me, is that it aligns the ICC with political prerogatives and thus sullies the belief in international criminal justice as being divorced from politics. Additionally, the cases where the ICC has targeted heads of state (Sudan and Libya) came in the wake of UN Security Council referrals. Proponents of the Court are understandably wary of too close an alignment between the ICC and the political machinations of the Council. Arbour suggests an additional reason:
“The only reason not to tie regime change explicitly to the protection of civilians or justice is that doing so would make an already elusive Security Council consensus in support of intervention completely unattainable.”
In other words, Russia and China, whose international diplomacy remains based, albeit selectively, on the principle of non-interference in the affairs of sovereign states, would never support an ICC intervention if it was explicitly linked to regime change. According to Arbour, the result, however, is simply that regime change is pursued “by stealth or deceit, as in Libya. Or not at all, as with the unenforced ICC indictments.” The question is: is pursuing regime change by stealth better or worse than doing it honestly and explicitly?
Of course, other problems remain. Regime change often ends not in a leader facing justice but in an escalation of violence and deaths. This is an obvious and legitimate concern in the case of Syria. Moreover, there are no guarantees that those who replace the targeted regime will be more peaceful than their predecessors. Both of these issues pose persistent dangers.
The relationship between the ICC and regime change is inevitably a murky one, leading to more questions than answers. Should international criminal justice be so hesitant to align itself explicitly with regime change? Are there some cases like Darfur, like Libya and like Syria where regime change is fully justified and is, or at least has become, a precondition to ending the conflict? The answers to these questions are unclear and perhaps uncomfortable. But with the potential for an ICC intervention into Syria, this is certainly a debate that needs to be had.
Justice in Conflict 
So what happens when a western leader pursues ‘regime change’ to oust an elected leader through the criminal use of military power such as happened in Iraq and Libya? Who are these leaders accountable to if they can’t be brought before the ICC? Those like Arbour advocating for this dumb strategy are themselves flirting with the inevitable breakup of the UN system when it becomes clear that it has turned into a tool for some powerful nations to tyrannically impose their will on other nations through violence. As ever, these reckless people never look before they leap.
It is not a coincidence that yet again, an unaccountable NGO headed by George Soros like the International Crisis Group is in the middle of this nonsense. The ICC is slowly unmasking itself to reveal what many of us in the developing world have always thought it was; an imperialist organ for the so called ‘new world order’ designed to sustain the western empire, and to continue the avaricious and acquisitive domination of global resources.
“. . . when it becomes clear that it has turned into a tool for some powerful nations to tyrannically impose their will on other nations through violence. ” WHEN?? Isn’t that what is and has been happening?
Politics and judicial can and must never be mixed. Whatever the goal of establishing the ICC through the Rome Statute has been negated by the actions of Ocampo and his chosen follower.
Mark,
An excellent post, as usual. I hope you keep pursuing this line of inquiry. Whether we call it “regime change” or not, my own view is that, when we look at it from the perspective of many of the diplomats and others who drive it forward, international justice has always been a tool primarily for effecting political transitions and not necessarily for justice. This is not to say that this is the sole purpose behind international courts and tribunals. Many, especially NGOs and those within the institutions but also some within States, also see the intrinsic value of justice – and this sense is growing. But the political purpose of courts and tribunals remains fundamental for many decision makers. I would offer three thoughts in response to some of your questions, based on a paper I presented at the Grotius Centre in 2011 and which I hope to further develop along these lines if/when I have time:
First, by over-emphasizing the justice purpose, we risk creating expectations which these
institutions were not designed to meet and which the States which ultimately control them (through the budget, referrals, Statutory amendments, etc.) are not willing to support. Emphasizing the political purpose gives a more realistic view of what these institutions can achieve.
Second, the concept of legitimacy plays a key mediating role in understanding these institutions. What makes them effective instruments of political transition is their perceived legitimacy. It helps to marginalize targets and to rally international support. At the same time, those who want to leverage this legitimacy are also constrained by it in how they can go about acting. Libya is a great case in point. Reportedly, some ICC States Parties used the threat of referral as a negotiating chip (to be withdrawn if Gaddafi stood down) while being publicly unable to admit to doing so as this would undermine the very value of the ICC as a tool for marginalizing Gaddafi.
Third, when/where/how these institutions can be used to further political transitions often turn on very nuanced and practical questions of diplomacy. How can a threat of referral be effectively communicated? Will it be believed? What about a private guarantee of amnesty which cannot be publicly acknowledged? These issues are being confronted regularly by diplomats, and more careful analysis of these issues would be useful. I think for example of some of Kevin Jon Heller’s recent posts touching on the issue of what time in a conflict referral works best as a good example of the kind of inquiry needed. These are complicated questions which unfortunately get lost in the all-too-often sloganeering over peace vs. justice. Hopefully your inquiries will lead to some answers, or at least more good questions!
Thanks very much for all of your thoughtful comments.
David – many thanks for this very stimulating set of responses. I couldn’t agree more with you that “These are complicated questions which unfortunately get lost in the all-too-often sloganeering over peace vs. justice.” I’m particularly curious about your statement that “some ICC States Parties used the threat of referral as a negotiating chip (to be withdrawn if Gaddafi stood down) while being publicly unable to admit to doing so as this would undermine the very value of the ICC as a tool for marginalizing Gaddafi.” Do you know where this was reported? I’d be very keen to know more about it.
Thanks for engaging in the debate!
Mark,
There wasn’t a whole lot of reporting on Gaddafi, but what there was was along the following lines:
http://www.belfasttelegraph.co.uk/news/world-news/deal-could-see-gaddafi-escape-prosecution-15129516.html. Most everything else I remember reading was pretty similar although details may have differed). David Bosco also surmised some thoughts on what was going on here: http://bosco.foreignpolicy.com/posts/2011/02/27/the_libya_resolution_prosecution_as_bargaining_chip.
In the case of similar discussions in relation to al-Bashir, some of the leaked US cables are more explicit on what was supposedly going on behind the scenes. See, for example:
https://dazzlepod.com/cable/08LONDON1862/
and
https://dazzlepod.com/cable/08LONDON1841/
Of course, much of this is played out hidden from view, so we really don’t have a good deal of data on what sort of discussions were happening within or between capitals or missions and what kind of signals were being sent (and how).
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thank you for your work ,you help me to answer some troublesome questions about how this ICC really works
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