the icc and rule of law indicators in post-qaddafi libya

Earlier today, Sudanese President Omar al-Bashir visited Libya, receiving a warm welcome from National Transitional Council leader Mustafa Abdel-Jalil. This is hardly the first demonstration of bilateral solidarity between Sudan’s National Congress Party and Libya’s post-Qaddafi regime–in late November, Abdel-Jalil visited Khartoum for the NCP’s annual convention, where he secured strong bilateral relations between the previously embattled neighbors. Bashir’s current visit has stoked much more significant attention from the human rights community, due to its implications for Libya’s relationship with the International Criminal Court:

“Welcoming Bashir … raises questions about the NTC’s stated commitment to human rights and the rule of law,” Richard Dicker, international justice director at Human Rights Watch, said in a statement.

“Following the end of decades of brutal rule in Libya, it is disturbing if Tripoli hosts a head of state on the run from international arrest warrants for grave human rights violations.”

Dicker is right to observe the NTC’s circumstantial human rights failing; seeing as the ICC has indicted Bashir for war crimes, crimes against humanity, and genocide, travel restrictions–or, better yet, an arrest–would be an impressive demonstration of support for international human rights principles. However, Dicker’s “rule of law” assertion is more tenuous. International criminal justice is a preferable moral goal in and of itself, but there is no fundamental, correlative relationship between state participation in international criminal justice regimes and the domestic strength of the rule of law. The World Justice Project’s Rule of Law Index outlines nine characteristics of the rule of law–including limited governance, anti-corruption institutions, and the accessibility of civil justice mechanisms–none of which incorporate rhetorical support for international criminal prosecutions. In fact, the NTC appears to be making tentative progress towards meeting its rule of law metrics, despite initial challenges in security, transitional justice, and post-conflict reconciliation.

Rather than a weak commitment to the rule of law, the NTC’s implicit rejection of the ICC stems from two likely sources. First, as David Bosco notes, Libya gains a geopolitical advantage from accommodating Bashir’s diplomacy. Qaddafi’s regime provided safe haven, financial support, and military assistance to the early seeds of the Darfur region’s anti-government insurgency–in particular, to the Sudan Liberation Army’s Zaghawa factions. Darfuri mercenaries, often affiliated with the late Khalil Ibrahim’s Justice and Equality Movement, supported Qaddafi’s forces in their six-month conflict against the NTC. In the aftermath of Libya’s conflict, Bashir claimed that “the forces that liberated the [Libyan capital] Tripoli were armed 100 percent by Sudan”–while erroneous, the Sudanese president’s statement indicates the depth of Sudan’s relationship with the new Libyan regime, as well as Bashir’s emphasis on maintaining strong bilateral ties.

Second, the NTC has little internal motivation for supporting the ICC’s prosecution efforts against Bashir and his NCP colleagues. Contrary to Ken Roth’s assertions on Twitter, the ICC probably played a limited role in facilitating the ancien regime’s demise–without the NCP’s operational victory in Tripoli (and sweeping air assistance from NATO forces), Qaddafi’s robust security apparatus would have probably withstood the rebel onslaught. After all, under the international community’s “last resort” argumentation, the political failure of the Security Council’s international justice strategy triggered NATO’s aerial intervention. Since consolidating authority over the post-Qaddafi regime, the NTC has skillfully maneuvered around the ICC Prosecutor’s reach, as indicated by its unwillingness to sign on to the Rome Statute. Mark Kersten’s description of Abdel-Jalil’s political psychology, written shortly after Qaddafi’s fall, remains apt:

Jalil’s statement is a remarkably cunning political move. By arguing that Libya has the right to try Gaddafi for any crimes he committed prior the the ICC’s involvement in Libya, Jalil skillfully circumvents a show-down with the ICC. The NTC is not outright saying the ICC cannot or should not prosecute Gaddafi. Instead it is making, at least on the surface, a very sensible argument: Gaddafi has committed atrocities for a long time before February 2011 and he should be tried for the crimes he perpetrated against his own people. By making this argument, Jalil and the NTC can also claim that they are seeking a more encompassing justice which covers decades rather than months of injustices.

The extent of the NTC’s commitment to the rule of law remains uncertain. However, its commitment to the ICC arrest warrant’s implicit foreign travel restrictions is a poor indicator of the regime’s future.

Update: The Bashir-in-Libya controversy has sparked some valuable commentary throughout the blogosphere. In a new post on his excellent Causal Loop blog, fellow Hoya Anton Strezhnev outlines a game-theory approach to the NTC’s rejection of the ICC, emphasizing the new regime’s interest in building the credibility of domestic institutions:

If the commitment explanation for state behavior is accurate, then the NTC’s tenuous relationship with the International Criminal Court may suggest a belief by Libyan transitional leaders that their domestic reforms are a sufficient signal that they will not return to Gaddafi-style repression. Given the NTC’s professed goal of establishing democratic and accountable institutions, one would expect Libya to be less likely to turn to the ICC as a post-civil war commitment mechanism, given that the sovereignty costs are still high, but the signalling benefits are not uniquely advantageous. However, the task of disarming militias and integrating fighters remains daunting and if not done properly, could increase the risk of renewed violence.  Indeed, if the NTC begins to lack credibility in the eyes of some factions, then it may start looking outward to international organizations as a means of reassurance.

Responding to Strezhnev, Jay Ulfelder is more skeptical of game theory’s application to post-conflict Libya, underlining the regime’s inherent weakness and ready-born credibility dilemma:

The NTC wants and needs some things from the states that have endorsed the ICC, but it also wants and needs things from the militias that emerged during the civil war, and from neighbors like Sudan. Moreover, the members of the NTC are themselves presumably engaged in lots of internal haggling. In other words, the transitional government is simultaneously engaged in bargaining at four levels–internal, domestic, regional, and global–and actions that look like the prudent play on one of those levels will often look wrong-headed on others.

And, finally, Mark Kersten looks at the politics of international justice as they apply to Libya’s post-conflict development. Read the whole post, but I found his conclusion–on the broader context for the NTC’s political evolution–particularly compelling:

There is, no doubt, a need to guarantee human rights standards and the rule of law in post-Gaddafi Libya. But expectations should be tempered and pressures should be well-thought through. You don’t build an independent and effective judiciary, eroded over 40 years, over night. Likewise, bludgeoning Libya with the blunt end of the liberal peacebuilding and international justice stick won’t build the rule of law. Of course, doing nothing won’t either.

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