THERE’S MANY a slip between cup and lip. As the prolonged hunt for Bosnian Serb Gen Ratko Mladic and the as-yet unsuccessful bid to bring to book Sudan’s Omar Hassan al-Bashir have proved, the issuing of an arrest warrant by war crimes courts may seem to be more an act of political symbolism than a real promise of imminent justice. But only to a point. Times are changing.
Yesterday, as the International Criminal Court (ICC) issued warrants for the arrest of Muammar Gadafy, one of his sons, and his intelligence chief, the trial also opened in Cambodia of the four most senior surviving members of Cambodia’s murderous Khmer Rouge three decades after their “year zero”. A reminder to Gadafy, among others, that although international justice is slow and lumbering, we no longer live in an age when the ultimate impunity of tyrants is taken as a given.
Within the past few weeks Mladic was hauled in to face genocide charges before the UN tribunal for former Yugoslavia, Egypt’s military put Hosni Mubarak on trial, Ivory Coast announced it would hand over deposed strongman Laurent Gbagbo to the ICC, and the Tunisians filed charges against exiled former ruler Zine al-Abidine Ben Ali. Proceedings are also under way against former president of Liberia Charles Taylor at another UN tribunal (his lawyer recently rhetorically demanded that justice should be applied equally to all, asking why Gadafy was not in the dock).
The ICC is not itself endowed with the means to arrest Gadafy and depends for the effectiveness of its writ on the goodwill and co-operation of states in a position to do so. That co-operation may not be forthcoming. Though the prosecution was initiated by the UN Security Council, some of those involved in the UN-mandated military operation in Libya may question if the warrant will contribute to Gadafy’s willingness to depart early, or prove an obstacle, a reason for clinging on.
While the ICC has rightly considered purely the judicial merits of the case – it has established a prima facie case against the three of crimes against humanity for the “pre-determined” killing of protesters – a demand by Gadafy for amnesty and free passage to, say, Saudi Arabia may form part of an eventual deal to effect transition. At that point the security council may decide pragmatically that the greater good may require the warrant to go unenforced. Until then, however, it should remain in force, part of the panoply of measures that increase the political isolation of an illegitimate regime and a megalomaniac butcher of his own people.
Ultimately, however, that choice may not have to be made. Gadafy’s military position is weakening by the day. Defections are sapping his inner circle, while yesterday there were reports that rebels have advanced to within 80 kilometres of Tripoli, and a senior UN official spoke of the conflict starting to shift in favour of the insurgents. Three of his ministers are said to be in Tunisia for secret talks. The weaker Gadafy’s hand, the less he can demand – day by day eventual arrest and trial may actually become a more probable outcome.