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Tim Work on the ICC and Libya

In response to the previous post on the ICC arrest warrants, Tim Work offers the following insightful comments responding to the question of whether the issuance of the warrants are useful in bringing about an end to the conflict:

Not sure it’s terribly relevant. The civil war could end in a few ways, including (i) Gaddafi ceding control to a bargained government and leaving the country; (ii) Gaddafi ceding control and staying in Libya; and (iii) one of the two sides scoring a definitive victory. ICC warrants don’t materially change how any of these outcomes would be reached or whether they would be reached at all.

Under (i), if Gaddafi left, he would simply go to a country that doesn’t recognize the ICC or that is willing to defy it (whether openly or discreetly). Perhaps the issuance of arrest warrants narrows the list of possible exile countries, but does not eliminate all possibilities. In any event, countries that don’t pay much mind to human rights are probably the only ones he would have considered anyway.

Option (ii) is unlikely, but not because of arrest warrants. Although precedent exists for this option (Pinochet), it is improbable because any rational rebel bargaining position would involve excluding any possibility of Gaddafi returning to power, which would require isolating him from his power network within Libya. But if this did happen, Gaddafi would bargain to negate the power of the ICC to get its hands on him if he remained in Libya. He’s also smart enough to bargain for mechanisms to ensure the new government would keeps its side of the deal.

Under (iii), neither side nor their supporters would fight any harder or smarter in relation to the other because of the existence of arrest warrants. The ICC itself could not affect the outcome of the war unless it has a few infantry divisions lying around that it failed to mention to the rest of us. It is also unlikely that any new participants would get involved on one side or the other merely because arrest warrants have been issued (unless the Swedish are a lot more deadly serious about human rights than anyone anticipated).

Tim Work is an Associate with the law firm of Freshfields Bruckhaus Deringer in Cologne, German. He is a summa cum laude graduate of Virgina Polytechnic Institute and State University and holds an MSFS, a JD, and an LL.M. from Georgetown University.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.