Wednesday, July 6, 2011

The AU Qadhafi decision: some initial thoughts

This weekend past African leaders meeting in Equatorial Guinea, at the 17th Ordinary Assembly of the African Union, unanimously adopted a decision that threatens to halt the ongoing investigation of the International Criminal Court (ICC) in Libya and seriously undermine the institution’s future operation generally. In addition to re-iterating its obstructionist positions in respect of the ICC’s proceedings in Darfur and Kenya (calling on the United Nations Security Council (UNSC) to halt the Court’s work investigating mass atrocities in both countries [see below]), the AU adopted a decision “that AU Member States shall not cooperate in the execution of the arrest warrant”, and requested the UNSC to suspend the ICC process on Libya, “in the interest of justice as well as peace in the country”. It did so on the basis of “deep concerns at the manner in which the [ICC] Prosecutor is handling the situation in Libya” and after noting that “the warrant of arrest issued by the Pre-Trial Chamber concerning Colonel Qadhafi, seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya, which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation”.

The AU’s decision on Qadhafi mirrors the approach taken by the regional body to the arrest warrant issued for President al-Bashir of Sudan by the ICC for international crimes. The decision is based on the supposition that Qadhafi (like al-Bashir in Sudan) is crucial to the ongoing peace process and therefore the UNSC should use its power under the ICC’s Statute to defer proceedings in the interest of international peace and security. Further, in anticipation of the UNSC’s refusal to accede to its request, as it has done in the case of al-Bashir, the AU has instructed its members not to cooperate in the execution of the arrest, notwithstanding that over half of them are legally obligated to do so as parties to the ICC Statute. Unlike its decision on al-Bashir, the AU’s Qadhafi decision is not made subject to the request that ICC states parties “balance, where applicable, their obligations to the AU with their obligations to the ICC”, included (in respect of al-Bashir, apparently at South Africa’s behest) to account for such states’ obligations under the ICC Statute.
A full exploration of the merits of the controversial supposition that quashing the arrest warrant is necessary in order to preserve the peace process in Libya will be considered in due course, suffice it to make the preliminary points for now:

Firstly, to the extent that “peace” and “justice” can be seen as competing goods, with the former in certain circumstances taking precedence over the latter (itself a controversial hypothesis), it’s not clear by any means that the situation in Libya warrants such a trade-off. By way of comparison, the situation in Sudan is much closer to fitting the bill than Libya. In Sudan al-Bashir is the leader of a ruling party at the centre of two parallel political negotiations, one in Darfur where his alleged crimes took place and another with Southern Sudan which seeks to end Africa’s longest civil war and usher in a new state of Southern Sudan this week. That is light-years from the Libyan scenario where Mr Qadhafi, a self-anointed Brother Leader is refusing to relinquish power, and acting as a stumbling block to political negotiations, in the context of an ongoing insurgency-cum-civil war. There is a marked difference between making the painful choice of providing impunity to one despot in order to facilitate a broader, durable peace, and allowing another crackpot to hold an entire nation captive not by the promise of peace but the threat of more violence. Leaving aside the effects of such a compromised compromise on the integrity of the system of international justice, in a very immediate sense it sets a bad precedent by providing a perverse incentive for incumbents to use the threat of violence as a negotiating tool. This at a time when arrogance and obstinacy are becoming part of our continent’s political culture not just in times of war but in the tenuous peace in the wake of elections (see Kenya, Cote d’Ivoire, Zimbabwe).

Secondly, even if the pursuit of peace in Libya requires the quashing of the arrest warrant for Qadhafi, African ICC States Parties (such as South Africa) are obliged to pursue means of doing so that do not place them in violation of the obligations under the Rome Statute. Article 16 of the ICC Statute is one option (though such a decision would have to be renewed annually), but unfortunately the AU decision does not stop there and adds the additional (and illegal) instruction to members states not to cooperate with the ICC in respect of the arrest warrant.

Thirdly, even the political realists who see nothing wrong with instrumentalizing international law in the pursuit of political stability and peace in Libya would surely agree this must be done with a view to ensuring maximum efficacy. By ordering non-cooperation from the outset the AU have squandered the opportunity to use the arrest warrant, and its possible suspension, in a more nuanced way as part of a conditional exit strategy for Qadhafi. As a result they are left with very little else to bargain with.