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.