ICC's Investigation Of Gadhafi Faces Complications

The International Criminal Court prosecutor announced last month that he's already building a case against Libya's Moammar Gadhafi. Michele Norris talks with former Ambassador at Large for War Crimes Issues David Scheffer about Gadhafi's options — and how the ICC is working to prosecute him.

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MICHELE NORRIS, host:

The International Criminal Court is investigating alleged crimes against humanity by Moammar Gadhafi. That investigation was authorized by the United Nations in February.

And here's an interesting fact. The ICC prosecutor can only consider incidents that occurred since February 15th. The existence of this investigation raises a lot of questions and possible complications about what the endgame could be for Gadhafi.

With us to piece through some of these is David Scheffer. He's a professor of law at Northwestern University, and he was ambassador-at-large for war crimes issues during the Clinton administration.

Ambassador, welcome to the program.

Professor DAVID SCHEFFER (Northwestern University; Former U.S. Ambassador-at-Large for War Crimes, Clinton Administration): Thank you, Michele.

NORRIS: First of all, can you tell us a bit more about what the ICC prosecutor has been doing so far?

Prof. SCHEFFER: He's been very, very active. What he has in his hands is a very powerful instrument. It's a Security Council referral of the situation in Libya since February 15th. That means he's got the power of the Security Council behind him. He doesn't always have that at the ICC, but, in this case, he does.

And he has very publicly identified the initial batch of incidents where you have a lot of killing of civilians. You have their forced displacement, which is sort of like ethnic cleansing out of the cities. You have illegal detentions. Never before has he been this forthcoming, this public about what he is doing.

NORRIS: And we're talking about the ICC prosecutor, Luis Moreno Ocampo. Is he investigating this case with the intention to bring Moammar Gadhafi to trial, or is this meant to send some sort of message, some sort of diplomatic strategy at work?

Prof. SCHEFFER: Earlier this week, prosecutor Moreno Ocampo stated that it is a hundred percent certain that he will bring indictments against top leaders of the Libyan regime. So that means we have potential trials ahead of us here. Probably...

NORRIS: And not just Gadhafi.

Prof. SCHEFFER: Oh, of course, not. Also, my guess is that when he reports to the Security Council in early May, that is the date that he's sort of targeting for the announcement of his request for indictments, which then, of course, have to be approved by the judges.

NORRIS: There's a lot of talk about a negotiated exit for Moammar Gadhafi. How might that work, and where might he go, and would he be subject to prosecution even if he were to leave the country and perhaps land in a country that doesn't recognize the ICC?

Prof. SCHEFFER: If he were thinking rationally - and we don't know if he is -he would be negotiating that, so that he exits to a country that is not a state party to the International Criminal Court, is not obligated to transfer him to The Hague.

Even if he is indicted, that could be a long process before he could actually meet justice. It doesn't deny the prosecutor the ability to prosecute him, unless the Security Council explicitly so directs the prosecutor through another Security Council resolution under Chapter 7. That's possible. That could be part of a deal, but he has to act quickly to negotiate that kind of deal.

Once the indictment is handed down, it is a much more difficult process to avoid the implications and the consequences of that indictment for him.

NORRIS: You know, the president was asked recently at a press conference if he would be comfortable - if President Obama would be comfortable with the idea of Moammar Gadhafi living in a villa somewhere in Zimbabwe. I ask this question because I'm wondering if that puts the ICC in a difficult position, if he does land in a place where he's able to live quite comfortably while they're still building this case.

Prof. SCHEFFER: That's a possible outcome. It might be a preferable outcome for the purpose of bringing this whole situation to closure in Libya. But the wheels of justice are turning, and only the Security Council, at this point, can hit a political deal that would avoid either an indictment or an enforcement of an indictment by the court against Gadhafi wherever he lands.

NORRIS: David Scheffer, thank you very much.

Prof. SCHEFFER: Thank you, Michele. It's been a pleasure.

NORRIS: That's David Scheffer. He directs the Center for International Human Rights at Northwestern University. He's also a former U.S. ambassador-at-large for war crimes issues.

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