The International Criminal Court and Global Governance

Libyan leader Moammar Qaddafi, the target of an ICC arrest warrant.

The International Criminal Court’s decision this week to issue an arrest warrant for Libyan leader Moammar Qaddafi has revived debate about the power and usefulness of the ICC in world politics.  The ICC is an international governmental organization (IGO)–an organization whose members are states–that was created by the 1998 Rome Treaty and today has 114 members.  Its purpose is to prosecute individuals accused of genocide, war crimes, and crimes against humanity.  (The charges against Qaddafi, his son, and his military intelligence chief were for crimes against humanity stemming from the regime’s  crackdown on anti-government protesters).  The ICC operates according to the principle of complementarity, which means that it can only act when national court systems are unable or unwilling to take action against the perpetrators of such crimes.  The United States has refused to sign the Rome Treaty and has expressed fears that its soldiers or government officials could be subjected to politically motivated prosecutions by the court, but it has increasingly shown a willingness to use the ICC as a tool to accomplish its foreign policy goals, as discussed in this piece by Colum Lynch.

“Global governance” refers to efforts to move beyond an anarchic system of sovereign states and create structures that can make and enforce rules at the global level.  The ICC is obviously a crucial part of these efforts.  However, a fundamental weakness of the ICC (and other global bodies) is that it does not have an army or police force that can enforce its arrest warrants and bring indicted war criminals such as Sudan’s President Bashir or Libya’s Moammar Qaddafi to justice.  One commentator described the ICC indictment as a fairly impotent call for Qaddafi to “please turn yourself in, now.”  Without “teeth” to enforce its dictates, the ICC must rely on cooperation from state actors, and a number of analysts have raised doubts about whether the NATO forces that are carrying out the bombing of Libya will extend their mission to enforcing the arrest warrant against Qaddafi and his associates.  David Kaye, director of the International Human Rights Law program at UCLA’s School of Law, put it this way:

“Arresting the three would require “boots on the ground,” a scenario that has largely — if not categorically — been taken off the table, especially by the United States. The last time NATO faced such a predicament, in Bosnia in the 1990s, it long resisted devoting any of its resources to enforcing arrest warrants issued by the UN International Criminal Tribunal for the Former Yugoslavia, even when it had significant numbers of troops on the ground.”

Beyond questions of enforcement, other analysts have argued that the ICC indictments, while morally and legally justified, represent a tactical blunder that reduces the chances of a peace deal that could end the bloodshed in Libya.  Foreign policy analyst and former National Security Council official James Lindsay argued in a May 17 Op-Ed piece that an arrest warrant “…would give [Qaddafi]  additional reason to dig in his heels. With the threat of arrest and trial in The Hague hanging over his head, he knows he will not have the option given dictators of old – going into exile to Paris (Baby Doc Duvalier) or retreat to Saudi Arabi (Idi Amin)…Both a rebel victory and a stable ceasefire remain out of reach. A diplomatic initiative to persuade Gadhafi to step down offers one way out of the current stalemate. But Monday’s ICC indictment simply gives him another reason to hang on and fight.”  For other thoughtful articles on the conflict between justice and peace in this case, see here and here.

The Atlantic’s Max Fisher provides a somewhat different view, arguing that “Ultimately, the arrest warrant is likely to serve as little more than another bargaining chip in any negotiations over ending Libya’s civil war. That’s a good thing — as fighting worsens and civil society degrades, anything that makes peace more likely is essential — but it’s not quite international justice in the legal sense of the term.”

A final critique, aimed not at the indictment of Qaddafi per se, but at the inconsistent application of international law (i.e., why Qaddafi and not others?)can be found here.

What do you think?  Was the ICC’s indictment of Qaddafi a wise step?  How can the structural impediments to global governance (foremost among them, state sovereignty) be overcome to enforce human rights globally and consistently?  Or would the surrender of state sovereignty to supranational organizations actually create more problems than it solves?