(Photo: AFP)

There has long been speculation that the International Criminal Court (ICC) wasn’t done with its work in Libya. Earlier this week, the Court unveiled an arrest warrant for Al-Tuhamy Mohamed Khaled, the former Libyan security chief under Muammar Gaddafi. Prosecutors at the ICC have charged Khaled with four counts of crimes against humanity and three counts of war crimes for his role in the 2011 Libyan civil war. The Court originally issued the arrest warrant four years ago but only made it public this month. Here are five things to know about the warrant for Khaled.

This is only the second public arrest warrant issued under the current Prosecutor

The current chief Prosecutor of the ICC, Fatou Bensouda, has held her office since mid-2012. Until the warrant for Khaled was publicly disclosed, she had only issued one arrest warrant for international crimes in those five years. There are reasons for this. It is widely held that part of Bensouda’s mandate has been to clean the slate after a number of bungled investigations and prosecutions whilst pursuing more diligent investigations and building more thorough cases. Her style is certainly more under-stated and careful than cavalier and gung-ho.

Moreover, the ICC’s Office of the Prosecutor under Bensouda appears increasingly strategic and opportunistic in its decision-making. Its only other arrest warrant to date was issued against Ahmad al-Faqi al-Mahdi. Prosecutors alleged that al-Mahdi was guilty of the war crimes for his part in destroying historic and UNESCO-protected sites in Timbuktu, Mali. When they sought his arrest, the Ansar Dine extremist had already toiled in a prison in Niger for a year and had pledged to cooperate with prosecutors. Within a year of his surrender, al-Mahdi plead guilty to war crimes. His case exemplified how the prosecutors now seek to identify opportunities to pursue targets that will be effectively surrendered, prosecute individuals for crimes that resonate with the international community, and build cases that can be adjudicated efficiently.

Where does the warrant for Khaled fit into this? For the moment, it isn’t clear. The former senior Gaddafi regime figure resides in Egypt, which is not a member-state of the ICC, and the prospects of his surrender to The Hague appear dim.

Sealing and Dealing

There has been a long-standing debate in international criminal justice circles as to whether prosecutors should seek public or secret arrest warrants. The arguments on either side are understandable.

Some believe that the Court should issue warrants as publicly as possible. One NGO working on Libyan accountability issues, for example, has urged the ICC to publicly disclose arrest warrants because their existence may deter the commission of additional international crimes.

Others believe that the Court should use its ability to issue sealed arrest warrants if doing so would increase the prospects of those arrest warrants being executed. Any deterrence impact of the ICC surely relies on the Court’s targets being in the dock and surely suffers from languishing public arrest warrants.

The Office of the Prosecutor of the ICC struggles with the question of public versus sealed arrest warrants. In the case of Sudanese President Omar al-Bashir, for example, the Office decided that issuing a public warrant was most appropriate because, while it might undermine the prospects of surrender, it would openly signal to states that the Court was targeting Bashir and not seeking to have a secret warrant fulfilled thus leaving Sudan with an unstable political power vacuum. In some instances, the ICC be compelled to publicize its warrants in order to be seen to be active in a particular situations. In other cases, the dominant consideration for prosecutors will be the prospects of surrender.

Opposition Impunity

The ICC first intervened in Libya following a referral from the United Nations Security Council in 2011. That referral came in response to palpable fears that Gaddafi was preparing to slaughter civilians in order to quell Libya’s Arab-spring inspired uprising. The Court subsequently issued warrants of arrest for three regime figures — Gaddafi, his son Saif al-Islam, and spy chief Abdullah al-Senussi. 

As head of Libya’s Internal Security Agency, Khaled was part of Gaddafi’s inner circle and he is now the fourth individual from the regime to be targeted by the ICC. The number of opposition figures or fighters indicted by the ICC remains zero — at least judging by public arrest warrants. This is particularly worrisome given widespread allegations, including those levied by the Commission of Inquiry on Libya, that the opposition committed war crimes, crimes against humanity, and, in the case of the city of Tawergha, ethnic cleansing. It is even more peculiar given suggestions from Libyan officials that they would like the ICC to help reign in wanton militias.

Bensouda has occasionally intimated that she remains interested in achieving accountability for opposition crimes. However, five years on, the ICC’s Office of the Prosecutor hasn’t summoned the courage to put that promise into practice.

It’s Not Resonating

When the ICC first intervened in Libya in 2011, its warrants captured widespread international attention. Some feared the ICC’s intervention would spoil any potential diplomatic resolution to the war. Others welcomed it as a powerful demonstration of moral, political, and legal affirmation for the Libyan opposition. Either way, the Court’s role and impact in Libya resonated.

In contrast, the response from the international community to the unveiling of the arrest warrant for Khaled has been largely muted. Indeed, it wouldn’t be a stretch to say it has been the most unremarkable public reaction to any arrest warrant issued by the Court in its fifteen-year existence. It appears that only one major news outlet, Al Jazeera, has covered it in any depth.

There are a number of possible explanations for this resounding apathy. For one, Khaled isn’t an especially well-known figure outside of Libya and the region. He was sanctioned by the United States during the Libyan civil war, but little else about him known and he didn’t have much of a profile during the conflict — which may also help to explain why the ICC only issued an arrest warrant for him in 2013, two years after its initial indictments. Second, global attention on Libya has waned over the last few years and whatever attention is devoted to the country relates to ongoing violence and the role of the Islamic State fomenting instability.

Of course, the low-key reaction to Khaled’s indictment may not necessarily be a bad thing for the ICC. It would be much worse if the international community vocally opposed the Court’s decision. Given the unlikelihood of Khaled’s surrender to the ICC, less attention on an unenforced arrest warrant suits the Court. Highly publicized but actively ignored warrants for the likes of Bashir have long undermined the institution’s credibility. However, in this case, the ICC appears to have gambled that its publication of the warrant would spur global pressure on Egypt after four years of quiet efforts to convince Cairo to surrender Khaled failed.

Why now?

Finally, why did the ICC reveal its warrant of arrest for Khaled now? As noted above, the Office of the Prosecutor has demonstrated a tendency to act opportunistically in issuing warrants, timing them to coincide with moments when the likelihood of reaching cooperation from relevant states and thus having indictments enforced is high. In this case, the ICC announced that it was “reclassifying the warrant of arrest as public” because it could facilitate Khaled’s “arrest and surrender as all states will then be aware of its existence” and “could foster support and cooperation for an arrest operation from the international community”.

For the time being, it appears unlikely that the ICC’s decision will spur Egypt to cooperate with the Court. In four years, Egypt has demonstrated zero interest in cooperating with the ICC to surrender him to The Hague. For the moment, it remains unclear why it is in Cairo’s interest to protect Khaled from prosecution — but it evidently is. That leaves two possibilities: one, either news of the warrant leaked to Khaled leaving the ICC with no reason to keep it secret in the hopes that he would unwittingly travel to an ICC member-state and be arrested; or two, the decision to publicize the indictment is an act of frustration and exasperation on the part of the ICC with Egypt. After four years of getting nowhere, it was time to try something new and the Court is banking on increased international pressure on Cairo.

Will the ICC’s gamble eventually pay off? Only time will tell.