Last Wednesday’s announcement that the International Criminal Court will seek arrest warrants against three senior officials in Libya will come as no surprise to Security Council members who gave the ICC authority to investigate. They may soon find themselves regretting this decision.
The responsibility to protect and the duty to prosecute both have strong coalitions backing them, but these two norms do not always go well together. The duty to prosecute removes an indispensable strategy for inducing the peaceful exit of perpetrators. Unless NATO is prepared to put boots on the ground, its ability to negotiate a palatable exit for Qaddafi and his key supporters could become essential to bringing an end to this intervention.
Libyan rebel leaders demand that Qaddafi step down, but they refuse to negotiate a settlement with him. Leaders in Britain, France, and the United States have embraced this rebel demand, blurring the line between the goal of protecting civilians and regime change. So far, though, they have been prudent. The mandate of protecting civilians has not been used to justify an expanded mission with on the ground operations to ensure a swift change of regime.
Without an international decision to invade or arm the rebels, it is hard to imagine how this conflict will end. The ICC’s announcement that arrest warrants are forthcoming will only make this worse. Qaddafi or his core supporters will be unlikely to abdicate power without guarantees against prosecution. The international coalition that backed UN Security Council Resolutions 1970 and 1973 may have boxed itself into a corner.