The Gaurdian | Richard Norton-Taylor & Chris Stephen | July 26, 2011
The international criminal court has dismissed suggestions by Britain and France that Colonel Muammar Gaddafi could be allowed to remain in Libya as part of negotiated deal to remove him from power, insisting that a new government would be obliged to arrest the dictator under warrants issued by the court.
The ICC, which Britain and France have signed up to, said that Gaddafi could not be allowed to escape justice. “He has to be arrested,” said Florence Olara, spokeswoman for the court’s chief prosecutor, Luis Moreno-Ocampo.
On Monday the foreign secretary, William Hague, said Britain was prepared to agree to a political settlement in Libya that would see Gaddafi remain in the country after relinquishing his hold on power.
“What happens to Gaddafi is ultimately a question for the Libyans,” Hague said. “It is for the Libyan people to determine their own future. Whatever happens, Gaddafi must leave power.
“He must never again be able to threaten the lives of Libyan civilians, nor to destabilise Libya once he has left power.”
But Olara said the decision to seek justice had been made in the UN, adding that the ICC’s arrest warrants were “legal facts” which “cannot go away”.
“Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC’s decision,” Olara said.
Hague’s comments on Monday chime with those of Mustafa Abdul Jalil, president of the rebel national transitional council, who told Reuters earlier this month that Gaddafi could remain in Libya if he agreed to step down.
Jalil said the deal would require Gaddafi to live in a designated part of the country. “We will determine the place under international supervision.”
However, giving Gaddafi what amounts to immunity would be a complex process. The only legal immunity for an ICC warrant is a UN security council resolution which can suspend a warrant from The Hague, but such a move would be highly controversial politically, not least because the ICC statue mandates that the resolution would need to be revisited every 12 months. Politically, immunity would go down badly in rebel-held parts of Libya, where the torture, killings and destruction have caused deep wounds.
“It’s too late for such a thing,” said Yunis Al-Haq, an 18-year-old art student in the besieged city of Misrata. “Maybe if this deal [suggested by Hague] was made at the beginning, when Gaddafi had killed only 10 people, maybe we could forgive him. But now, after this war, he killed a lot of people, it can’t be forgiven that easy.”
On 27 June, the ICC issued arrest warrants for Gaddafi and his son Saif al-Islam over crimes against humanity allegedly committed during anti-regime protests. It also issued a warrant for the Libyan intelligence chief, Abdullah al-Senussi, at the request of the ICC’s chief prosecutor.
In his submission Moreno-Ocampo said Gaddafi had a personal hand in planning and implementing “a policy of widespread and systematic attacks against civilians and demonstrators and dissidents”.
There were “reasonable grounds to believe” that the three men were “criminally responsible” for the murder and persecution of civilians, said a statement read out by the ICC’s presiding judge, Sanji Monageng. Gaddafi had absolute and unquestioned control over Libya as its undisputed leader, and had introduced a policy to suppress civilian demonstrations by any means, including by the use of force, the court said.
Though Saif al-Islam Gaddafi held no official position in Libya, he was “the most influential person” in Gaddafi’s inner circle, it added. The court said Sanussi had “directly instructed the troops to attack civilians demonstrating” in Benghazi, now the rebels’ city stronghold.
The warrants were requested by Moreno-Ocampo in May, to protect Libyan civilians. UN security council resolution 1970 states: “The Libyan authorities shall co-operate fully with and provide any necessary assistance to the (international criminal) court and the prosecutor.”
The “primary responsibility” for respecting the UN and ICC decisions and arresting Gaddafi lay with the national transitional council, Olara said.
It is believed Britain hopes to tempt Gaddafi out of Libya by suggesting he could go to a country that does not recognise the ICC.
Former foreign secretary Sir Malcolm Rifkind said on Tuesday: “This isn’t about the British position or the Nato position – it’s about what the Libyans themselves want and can live with”. He told BBC Radio 4 Today programme: “It is their country and it is their future. If they can live with a situation where Gaddafi remains in the country but is deprived of power then it is none of our business to say that is unacceptable.”