In today's Washington Post, Jackson Diehl makes the by-now familiar argument that the International Criminal Court's role in Libya has not been helpful:
Gaddafi has a powerful incentive to fight to the death, greatly prolonging what could have been a short war. The ICC prosecution means that if Gaddafi surrenders he will end up in a cell at The Hague, rather than a comfortable exile. The U.N. Security Council has the authority to suspend ICC proceedings and could perhaps do so in exchange for Gaddafi’s agreement to step down. But no one wants to admit that it was a mistake to refer Gaddafi’s case to the ICC in February, a few weeks before the Western military intervention.
There’s been no hurry, at least, to direct the ICC at Syria — even though Assad probably has now slaughtered more civilians than Gaddafi before the court was called in. Assad will need a place to go outside Syria if he gives up office peacefully — or an immunity deal. Leaving room for one or the other would be a way of learning from the Arab Spring’s mistakes.
Diehl's broad argument in favor of impunity and exile has all sorts of holes, but he may be right that, in this case, the ICC has created perverse incentives. Qaddafi may have clung to power with or without the threat of a trial in The Hague, but that prospect no doubt makes leaving power that much less attractive. It's also hard to make the case that the threat of ICC indictment has deterred Qaddafi and his commanders from committing atrocities (though I suppose one could contend that the fighting would have been even more brutal absent the prying eye of The Hague).
It's a bit disconcerting that international-justice advocates rarely acknowledge the possible downsides to international judicial intervention or grapple with the evidence that cuts against their predictions. In sectors of the human rights community, there's a messianic faith in the value of international justice. And that's fine if the argument is essentially one based on principle: Justice is right; impunity is wrong; consequences be damned. But the justice movement makes the argument both on principled grounds and on consequentialist grounds. It has an obligation to honestly confront some of the possible negative consequences.
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