Argument

Mad Dog in The Hague?

It might seem quixotic for the International Criminal Court to indict Libya's unrepentant leader, Muammar al-Qaddafi. But the call for justice can have a pragmatic effect too.

As the conflict in Libya drags on, with a swift military solution looking increasingly less likely, the International Criminal Court (ICC) has now launched its bid to hold Muammar al-Qaddafi accountable for his crimes.

The ICC's prosecutor, Luis Moreno-Ocampo, announced on May 16 that he will seek the arrest of Qaddafi -- along with his son Saif al-Islam and intelligence chief Abdullah al-Senussi -- for "widespread and systematic attacks" against civilians. It remains to be seen whether ICC judges will issue warrants for the three's arrest, but the question is already being asked: Will the threat of ICC prosecution only discourage the Libyan leader from negotiating his eventual departure?

Blind fidelity to law, some say, removes a potentially valuable carrot -- amnesty -- from the negotiator's tool kit. And Libyan leaders are offering a cease-fire. So why risk prolonging a reign of terror in Libya simply for the sake of a moral ideal?

It's a fair question, but not an unfamiliar one; we make similar tactical choices every day in our own cities and towns. Take the example of kidnappers: The prospect of arrest may discourage some from giving up, extend the period of captivity for their victims, and heighten the risk of violence. But police don't let these criminals walk free. Rather, they manage the short-term risks in order to preserve the long-term deterrent impact on others of swift and sure punishment.

Is the international arena different? In fact, the accumulating experience of the past two decades shows that, though in the short run the prospect of justice may lead some teetering autocrats to cling to power -- Zimbabwe's Robert Mugabe is an oft-cited example -- the prosecution of sitting senior leaders for war crimes often speeds an end to conflict.

In 1995, ethnic cleansing had been raging for three years in Bosnia, resulting in tens of thousands of deaths, widespread rape, and massive displacement of civilians. When the U.N.-backed International Criminal Tribunal for the former Yugoslavia (ICTY) indicted two of the main perpetrators -- Bosnian Serb leader Radovan Karadzic and his military chief, Gen. Ratko Mladic -- on the eve of the Dayton peace talks, some cried foul. But the threat of prosecution did not prevent negotiators from reaching an agreement to end the war. Indeed, by keeping the indictees from attending Dayton, the charges may have helped U.S. officials find common ground among Bosniaks, Croats, and Serbs.

After Dayton, Yugoslav President Slobodan Milosevic remained in power and continued his use of violence to achieve political ends. In 1998, as conflict in Kosovo intensified and reports of atrocities by Yugoslav military and Serbian paramilitary forces against ethnic Albanian civilians proliferated, NATO launched a series of air raids against Yugoslavia to force Milosevic to halt military operations. The ICTY's indictment of Milosevic in May 1999, just as NATO's military campaign in Kosovo was under way, sparked concern that, by rigidifying attitudes on all sides, it would block a deal. But two weeks later, the war ended when Milosevic accepted the terms of a U.S.-brokered peace plan, despite the ICTY indictment. He lost power after elections in late 2000 and was handed over to U.N. custody in June 2001.

In Africa, as well, concern has arisen about the impact of a judicial process on potential or ongoing peace negotiations. Ghanaian officials were outraged when, in June 2003, the Special Court for Sierra Leone made public an indictment against Liberian President Charles Taylor at the very moment when he was attending talks in Accra aimed at ending Liberia's civil war. Although Ghana refused to arrest Taylor, the indictment made it politically impossible for him to continue as president. Two months later, he fled to Nigeria under a purported grant of asylum by that country's president, in exchange for his promise not to meddle further in Liberia's politics. In 2006, as a growing chorus of voices in West Africa and beyond pressed for his apprehension, Taylor was forced to flee his Nigerian hideout. He was subsequently turned over for trial in The Hague. Liberia is today a country at peace.

In October 2005, the ICC unsealed its first warrants of arrest, for senior leaders of Uganda's Lord's Resistance Army (LRA), which had long been accused of brutal conduct during its 20-year struggle with Uganda's government. Many Ugandans -- particularly those in the rural northwest -- were desperate to halt the fighting, but worried that the court's action would create insurmountable disincentives to peace. But just six weeks later, the LRA made public its desire to hold talks with the Ugandan government. Although those talks were never consummated and LRA leader Joseph Kony remains at large, it's widely acknowledged that the ICC's action helped isolate the LRA and permanently diminish it as a fighting force. Indeed, as the U.S. ambassador to Uganda made clear in 2006, "The ICC is not a hurdle to the talks. Instead, it is the reason why we have peace talks today."

In mid-2008, U.S. and other officials voiced concern that the ICC prosecutor's request to charge Sudanese President Omar Hassan al-Bashir for crimes in Darfur risked reigniting war in south Sudan. "[M]any diplomats, analysts and aid workers," the New York Times noted at the time, "worry that the Sudanese government could lash out at the prosecutor's move ... shutting the door to vital diplomatic efforts to bring lasting peace." Three years later, while defying the court's issuance of arrest warrants against him for genocide and crimes against humanity, Bashir has accepted the south's secession and even publicly pledged his full support for the new state.

In short, as these examples suggest, justice is often worth pursuing -- not simply for its own sake, but because it helps resolve conflicts by increasing international pressure. By delegitimizing leaders who commit crimes against civilian populations, the prospect of legal sanction may reduce their capacity for political obstruction and, as is the case in Libya, encourage subordinates to abandon ship. Such thinking may have led not only the United States, but China and Russia, to support the U.N. Security Council resolution calling for an ICC investigation in Libya, even though none of these three have ratified the court's underlying statute.

At least in the short run, justice may well complicate diplomatic efforts. Thus the timing -- if not the imperative -- of accountability may have to adjust. But the canard that international justice is quixotic, impractical, and harmful is part of a broader pattern of resistance to the movement for accountability that has emerged since the end of the Cold War. Critics have balked at the price tag (more than 100 million euros annually each for both the ICC and the ICTY), the length of proceedings (Milosevic died in his cell before judgment while the ICC has yet to complete its first trial), and the fact that its site at The Hague is too remote from the crime sites and the victims it serves.

It's true that the ICC is often not the most appropriate vehicle for judging facts and imposing sentences. There is increasing recognition that national courts -- closer to victims and witnesses, less costly, and often more widely accepted -- are preferable, when they are given the resources, the capacity, and the necessary political backing. But, as long as local courts remain unable or unwilling to put heads of state and others in the dock for grave crimes, international justice -- whether through the ICC or U.N.-backed hybrid tribunals -- will remain essential components of an emerging global accountability framework.

Perhaps that is why, despite the concerns of so-called "realists," the U.N. Security Council has referred two major crises in succession to the ICC, first Darfur and then (unanimously) Libya. Even the most hardened politicians seem to appreciate that, whatever its shortcomings, the ICC is a valuable means of addressing armed conflict. In the end, the strongest argument for some form of accountability may be to consider what a world without any would look like. It is, in fact, a world from which we have only recently emerged -- one where dictators like Idi Amin, Suharto, and Trujillo oversaw mass killings without fear of punishment.

That questions remain about how to enforce the new norm of accountability in practice is a testament to how much has changed so fast. As at the domestic level, so too in the world of diplomacy the benefits of sticking to principle multiply over time. Yes, the prospect of ICC action has not stopped Qaddafi's forces from using cluster bombs or land mines against civilians in Misrata.

And yet, over time, consistent U.S. support for Qaddafi's prosecution will bolster the credibility of the international community's deterrent for the next war criminal who threatens peace. By contrast, yielding now to tempting, if shortsighted, calls for "flexibility" in accommodating Qaddafi will give future "mad dogs" reason to believe they can get away with murder.

That is hardly in Washington's interest.

JOSEPH EID/AFP/Getty Images

Argument

Raging at Rawalpindi

American leaders are furious with Pakistan’s military in the wake of Osama bin Laden’s killing. But twisting arms will only backfire.

The United States has long complained that Pakistan's military and intelligence services are playing a double game when it comes to terrorism and extremism: publicly promising cooperation-and indeed delivering some-while privately supporting America's enemies. They point to Pakistan's apparent reluctance to take on groups like the Haqqaani network, a Taliban affiliate that launches attacks on American soldiers in Afghanistan, and the Quetta Shura, Taliban leaders based in Baluchistan. In the eyes of the United States, the Pakistan army has not been the most dependable international ally, a sentiment that is reciprocated by the Pakistanis. And now, many American officials are hoping that the raid that killed Osama bin Laden will give them the leverage to force the Pakistani security establishment to choose sides once and for all.

If only it were that simple.

Killing bin Laden has indeed succeeded at putting pressure on the Pakistani army, but not to the effect that Washington may have wished. The truth is that Pakistanis are angrier about the United States' ability to launch a special-operations raid right under their noses than they are that bin Laden was found on their soil-and the military is bearing the brunt of the criticism inside Pakistan. Text-message jokes about the army are making the rounds, parliament is angrily voicing embarrassing questions about the military's lack of preparedness, and the chattering classes are tossing ceaseless insults. But it's the United States that now has the most to lose. The Pakistani military is destined to remain an important institution in Pakistan's otherwise dysfunctional polity, and Washington has more to gain by reforming it cooperatively than by casting it aside.

Pakistan's history and geography has always dictated the need for a large military. It is surrounded by multiple major powers and conflict zones: Afghanistan to the west, rising India to the east, and China to the north, making Pakistan a key locus of super power interests and rivalries. It is necessarily wary about its own security. And the army has always seen itself as the national institution par excellence, an organization explicitly of the people and for the people. Indeed, recruitment patterns show that the army is increasingly representative of the country as a whole: in an otherwise fractured country, that is reason enough to justify its outsized presence on the national stage.

For the most part, the Pakistani military has earned its reputation as an effective military force. But it also overreached in trying to take over civil administration under general-cum-president Pervez Musharraf. And it has been poor at political engineering. The army under Musharraf had penetrated the ranks of the civilian bureaucracy, taking over education and training institutions and essentially running certain ministries. After assuming command as army chief, Kayani ordered all army officers serving in government to either resign from the military or to return to it full time.

At the time of the May 1 raid, the Pakistani military had just recently restored its pride of place as the most respected institution in the country. It had slipped in public confidence after it allowed the Pakistani Taliban to take over parts of Malakand and Swat in 2006, but in the past four years, the army, under its new chief, Gen. Ashfaq Parvez Kayani, has focused on burnishing its credentials and improving the institution's professionalism and capacity to fight. Both had been compromised under Musharraf's autocratic rule.

In the face of a rising tide of homegrown terrorism and insurgency, the army also shifted gears and its training from being India-centric to being more agile and prepared for low-intensity conflict, using some of the counterinsurgency (COIN) principles that the United States army learned in Iraq and Afghanistan. Within the past two years, it revamped the training at its military academy, infantry school, staff, college, and the national defense university to focus on how to fight asymmetric war against its own people. And it has moved some 150,000 troops to fight terror groups on its western border, incurring the wrath of a domestic insurgent group, the Tehrik-e-Taliban Pakistan (TTP). This was a major shift in thinking for a force that had in earlier years used its top spy agency, the Inter-Services Intelligence directorate, to foment insurgency in neighboring countries and support militancy against Afghanistan and India. It was a shift that was in tune with Washington's priorities in the region.

That's not to say that the military has been unimpeachable. It is still too involved in the country's economy, with major holdings in banking, real estate, and transportation. Especially as the national economy has deteriorated, the military has had incentives to involve itself in civilian decision-making. Further, Pakistan continues to countenance the use of its territory by Afghan Taliban groups that fight the U.S.-led coalition inside Afghanistan. Its inability or unwillingness to take on these Afghan groups in their Pakistani sanctuaries is a constant irritant in its relationship with the United States.

But the Pakistani military apparently recognizes the value of its ties with the U.S. military -- and not just the $16 billion it has received in security-related aid and reimbursements since 2001. A measure of the importance attached to American military training by the Pakistani military is the fact that a number of officers sent to the United States have been promoted before their return to Pakistan, if not immediately afterwards. Clearly, a lot of thought is going into the selection of the individuals being sent to the United States for specialized training. Some 100 of them will be in the United States this year alone.

Washington would be wise to use that cultural affinity -- as well as the fact that the Pakistani army depends on the United States to maintain its weapons systems and supply spare parts -- as leverage to change the shape of their long-term collaboration. Both sides need to explicitly agree on the nature of their relationship and identify and determine the reasons for their disagreements so there are no residual suspicions. A written agreement would provide maximum certainty. But the trust that is needed to sustain this relationship has to be earned by both sides. That will take time.

Determining the role of the Pakistani intelligence should, no doubt, also be on the American agenda. The ISI is an integral part of the Pakistan military, and the current head, Lt. Gen. Ahmad Shuja Pasha, is a close confidant of Kayani. It would be a mistake to assume that Pasha is working at cross purposes with the military.

But Washington can do plenty to immediately prove its good faith to Pakistan's most important public institution. It should share any links it can substantiate between the army and al Qaeda in general, and bin Laden in particular. It could emphasize that the United States is prepared to work together with Pakistan to find other al Qaeda leaders in other towns in the vicinity of Abbottabad, where they are likely to be located (given the reliance on courier communications of al Qaeda central). It could work to strengthen the capacity of Pakistan's civilian police institutions, which are closer to the ground and could play a key role in fighting militancy.

Of course, the United States is within its rights to lay out the options clearly and the implications of non-cooperation. Americans are angry at what they see as Pakistan's duplicity in the face of terror. But punishment is not a policy. No matter what the United States does, Pakistan's military will maintain its outsized role in the country's public life, and any agreement has to be in its interests for it to stick. Fortunately, there is much overlap between Washington's and Islamabad's interests in the region, from a stable Afghanistan and Pakistan to normalization of Pakistan's relations with India.

Before anything else, however, the Pakistani army should be given time to resolve its internal debates, tempting though it may be to ratchet up criticism and pressure after its public humiliation on May 1. If not, then a break with Pakistan may be unavoidable. And if that happens, it's likely the United States that will find itself friendless at a time when it needs allies more that ever.

Ishara S. KODIKARA/AFP/Getty Images