ANALYSIS:Libya's war may drag on for longer as the dictator may decide he has no choice but to fight to the bitter end
THE INTERNATIONAL Criminal Court ended months of suspense yesterday by announcing an arrest warrant against Col Muammar Gadafy – but now comes the tricky problem of actually bringing him in.
Prosecutors at the court worked overtime to procure an indictment against the Libyan leader, his son Saif and intelligence chief Abdullah al-Sanousi, fearing Gadafy might otherwise take the option of exile in return for ending the war.
That immunity option would now be harder to achieve, but not impossible. The UN Security Council has the power to suspend the case, but knows that to do so, after an arrest warrant is issued, would be highly controversial. Another option for Gadafy is to flee to a country that is not one of the 114 states who are members of the court. There, in theory at least, the government would be under no obligation to hand him over.
But such a move would trigger political pressure to hand him over: in 2003, Nigeria gave exile and immunity to former Liberian president Charles Taylor, despite his being charged with war crimes by the Sierra Leone Special Court.
Three years of pressure from the United States and human rights groups saw Lagos do an about-turn and hand him over for trial.
A bigger question will be the reaction of the African Union to the warrant: some union members have been well-funded by Gadafy over the years, and the union has launched several mediation attempts to end Libya’s war.
But the union also has the option to order what amounts to an immunity deal of its own. It has already used a loophole in the court’s rules to give union-wide immunity to Sudan’s president, Omar al-Bashir, who is wanted by the Hague court for genocide in Darfur.
The union could now give the Libyan president the same offer, and indeed may feel pressured to adopt a consistent policy regarding the court, rather than give immunity to one leader and not another.
International mediators, meanwhile, are now left with few options to put on the table: Britain, France, the US and Russia have all demanded that Gadafy step down to end the war, but their diplomats can now publicly offer him little more than a jail cell in The Hague.
Another non-starter is internal exile: the rebel National Transitional Council made the suggestion this week that Gadafy and family could see out their days in a southern desert oasis, only to be shot down by their own supporters who want the colonel’s blood.
Indeed, prosecutors in The Hague will be concerned that their suspect may not survive whatever process is undertaken to remove him, be it a bomb from Nato, an internal coup or the arrival of rebel forces in the capital.
Officially, the rebel leadership remains committed to taking Gadafy alive, but there are at this stage many scores to settle in Libya.
Certainly, the option of going to The Hague and trying to beat the rap appears slight.
Gadafy’s arrest warrant focuses mostly on alleged crimes in Benghazi and Tripoli, simply because it has been too dangerous for court prosecutors to make it to the besieged enclave of Misrata to gather evidence.
But they will surely come: Amnesty International and a team of lawyers formed by the rebel administration have already been hard at this work, documenting in great detail the shells and rockets that have rained down on the city – and the price in human life they have cost.
I have seen some of thousands of documents that appear to be written orders by Gadafy’s generals signed and stamped and ordering troops to bombard and starve out Misrata – clear breaches of the Geneva Conventions.
Such documents would mean, in layman’s terms, that the case is game, set and match for the prosecutors.
Even without them, the fact of war crimes taking place as investigators work on the ground means the evidence is strong and compelling.
If Gadafy chooses to head for The Hague, any defence team will have its work cut out denying the horrors paraded nightly on the world’s TV screens.
All of which leaves him in an even tighter corner. A trial seems likely to end in conviction, with a sentence that will see the 69-year-old spend the rest of his life behind bars. Exile carries no guarantee that political pressure from abroad would not see whoever offers him sanctuary changing their mind.
Paradoxically, this arrest warrant may result in Libya’s war dragging on for longer: the dictator, with no place left to go, may decide he has no choice but to fight to the bitter end.
Chris Stephen is a freelance journalist who is an expert in war crimes and the work of the war crimes tribunals in The Hague. He is author of Judgement Day: The Trial of Slobodan Milosevic(Atlantic Monthly Press, 2005)