Supposedly, when in 1832 the Supreme Court issued a ruling he disagreed with, President Andrew Jackson said: “John Marshall has made his decision; now let him enforce it!” I thought of that (apocryphal) quotation after the International Criminal Court’s decision to issue arrest warrants for Muammar Qaddafi, his son, and his military intelligence chief.
I have no doubt this trio are guilty of all the crimes with which they are charged—and many more. But what purpose does it serve now to issue these indictments? Is the ICC planning to send an army of international lawyers to Tripoli to arrest Qaddafi and bring him back for trial in the Hague?
The Sudan precedent is hardly encouraging in this regard: In 2005 the ICC indicted Omar Hassan al-Bashir, the president of Sudan. Bashir remains very much at liberty, still running his country and even preparing for a visit to China. It is hard to know whether such empty indictments help or hurt the cause of justice. Perhaps they help to isolate Qaddafi and Bashir, but they also make these tyrants more intransigent about remaining in power. They know if they step down they are more likely to wind up in a prison cell than in a villa on the Riviera.
I don’t have any problem with the existence of the ICC but, like any other prosecutor, it needs to be reviewed by responsible political authorities to make sure its actions are not only lawful but advisable. There is, however, no mechanism for political review built into the ICC, and it is hard to discern any real strategy behind its indictments. All of this risks making the ICC a laughing-stock.
As I’ve argued before, there needs to be a mechanism for the UN Security Council to grant immunity from prosecution when it’s warranted. In the case of Libya, a grant of immunity could be just the ticket to convince Qaddafi to leave power. Failing that, he is likely to fight to the death, taking more lives with him to the grave.