When we extract our pound of flesh in response to a heinous wrong that is on-going, believing this is necessary to deter others from ever doing the same thing, we confront a moral dilemma. Is it better to grant amnesty to the perpetrator in return for an end of the crimes being committed or to pursue the perpetrator until he is held accountable for all of the past crimes he has committed, even though this means more innocent people will be harmed before this occurs?
In a recent Stratfor report, Libya and the Problem with the Hague, George Friedman explains why this is one of the great moral dilemmas of our militarily sophisticated age. He uses Libya as an example of where this moral dilemma is being confronted today.
While western nations expected Moammar Gadhafi's regime to wither in the face of a substantial opposition movement and NATO's broadside attack, the opposite has occurred. While the civilian population is being uprooted, injured and many innocent people are being killed, there is presently no end to the destruction in sight. Gadhafi's faction has been stronger and more cohesive than imagined and his enemies weaker and more divided.
Friedman contends that, under the circumstances, this is not unusual. It has been a characteristic of what we often call "humanitarian wars," those intended to remove a repressive regime and replace it a representative democracy.
It was hoped that the present Libyan government would lose its control and this would lead Gadhafi to enter negotiations to concede control. Friedman contends that the existence of the International Criminal Court (ICC), which became operational in 2002 in The Hague, Netherlands, is a major reason why this is not going to happen.
"The ICC has jurisdiction, under U.N. mandate, to prosecute individuals who have committed war crimes, genocide and other crimes against humanity. Its jurisdiction is limited to those places where recognized governments are unwilling or unable to carry out their own judicial processes." This leads to an unintended consequence.
"Rather than serving as a tool for removing war criminals from power, it tends to enhance their power and remove incentives for capitulation or a negotiated exit." Friedman argues that what happened to Slobodan Milosevic of Yugoslavia under similar circumstances is a major disincentive for Gadhafi to negotiate. Gadhafi has been indicted by the ICC, as Milosevic had been when the civil war in Serbia was at a similar standoff.
Friedman points out that Gadhafi did not manage to rule Libya for 42 years without substantial support. No doubt, most of Gadhafi's henchmen are also guilty of serious war crimes and crimes against humanity. The same was true of Milosevic.
Despite NATO attacks, as long as Milosevic refused to cede his authority, there were enough loyalists in the government who feared that, if Milosevic sank, they would sink in the same ship, that they formed a united front, determined to stay in control as long as possible. What did they have to lose? The end of the Milosevic regime in Serbia was a one-way ticket to the ICC for him and possibly his supporters.
In fact, this is what happened after a nominally pro-Western government took control. It issued an arrest warrant for Milosevic and sent him to The Hague to be prosecuted. "The Milosevic case illustrates the inherent risk an indicted leader will face when the government falls in the hands of the opposition." Gadhafi is no doubt aware of what happened in Serbia.
What about a political agreement that Gadhafi receive amnesty in return for an end of the atrocities? The problem, according to Friedman, is that there is no political authority Gadhafi can deal with that can hold the ICC in abeyance. As with American courts, the ICC's authority is independent of the usual political process, which is needed to ensure its independence.
The result is that the political process is rendered moot by making amnesty impossible. As the ICC was a product of the United Nations, perhaps the UN Security Council could negotiate a binding agreement for amnesty, but the complex political situation that exists within the Security Council makes that unlikely.
Friedman concludes, "So the domestic political process is trumped by The Hague's legal process, which can only be trumped by the UNSC's political process. A potentially simple end to a civil war escalates to global politics."
Today the ICC is not the only authority that can claim jurisdiction in crimes against humanity. It was a Spanish magistrate, a minor figure in the Spanish legal system, that claimed jurisdiction over Augusto Pinochet, a former brutal dictator of Chili. Pinochet had left power pursuant to at carefully negotiated political process, but was extradited to Spain from Britain where he was visiting.
Instead of undermining men like Gadhafi, the apparatus established to hold him accountable aborts the possibility of a political process ever solving the problem without a clear military victory. This means the only resolution is a fight to the deadly end - at a high cost to the civilians who are caught in the crossfire.
Friedman argues that so long as political authority is trumped by judicial authority, nations are denied the authority to negotiate binding agreements that transfer control from dictators to representative democracies before the fighting ends. In the meantime, civilians suffer in the name of bringing wrongdoers to justice (i.e., punitive justice).