International Law as a Tool for Ascertaining Gaddafi’s Whereabouts

In a prior post, I explained that the International Criminal Court (“ICC”) has jurisdiction to prosecute Muammar Gaddafi because the Security Council passed a resolution to that effect in February 2011. Utilizing that jurisdiction, the Court issued arrest warrants against Gaddafi, his son, and his military intelligence chief for crimes against humanity in connection with their suppression of an uprising in eastern Libya several months ago. With Gaddafi effectively out of power and in hiding, news media have begun to speculate on his whereabouts. The latest reports suggest that he may have headed by land into Niger, which shares part of Libya’s southern border. It is unclear whether Niger would be Gaddafi’s final destination, or whether he has even left Libya.

Wherever Gaddafi is headed, international law provides an intriguing tool for prediction. Under the Rome Statute—the ICC’s founding treaty—a state-party is generally obligated to comply with ICC requests for arrest and surrender. Of the states bordering Libya, Chad, Niger, and Tunisia are all party to the Rome State, and thus seem to be obligated to turn Gaddafi over to the Court if they find him within their borders. If international law is effective, we should anticipate that Gaddafi will avoid these states out of fear of arrest.

Consider, therefore, Libya’s remaining border-states—Egypt, Sudan, and Algeria. None of these are party to the Rome Statute. As a result, none of them have an obligation under the treaty to comply with the arrest warrant. All of these states, however, are signatories to the Rome Statute, and are thus are obligated, under generally accepted principles of international law, not to act in ways that would defeat the treaty’s “object and purpose.” There seems to be a fair argument that this obligation precludes Egypt, Sudan, and Algeria from providing exile to Gaddafi—to do so would seriously interfere with the Court’s ability to prosecute, and would thus defeat—at least in part—the Rome Statute’s purpose of ending impunity for individuals responsible for crimes against humanity. Whether this argument will ultimately persuade is unclear, but it should make Gaddafi hesitate before trying to take shelter in the territory of any of these neighbors.

Which leaves non-bordering states in Libya’s vicinity. If Gaddafi has indeed entered Niger by land, and if he did so for the purpose of traveling by land to another state to Libya’s south or west, only Togo, Mauritania, and Equatorial Guinea remain as reasonably proximate states that are not party to the Rome Statute. Exile in any of these countries would make sense to the extent that they lack a treaty obligation to arrest and surrender Gaddafi to the Court. Of the three, Togo is probably closest, and therefore might present the most attractive option. Ivory Coast and Cameroon are also non-parties in the region, but both have signed the Rome Statute, just like Egypt, Sudan, and Algeria. Thus, whether Gaddafi sees the Ivory Coast and Cameroon as attractive candidates for his state of exile should depend at least in part on whether those states view the provision of exile as an act that would impermissibly defeat the Rome Statute’s object and purpose—seemingly an open question.

Clearly, many variables will affect Gaddafi’s decision about where to attempt to secure exile. But if he has headed into Niger by land to secure exile in a state within the region, and if the Rome Statute has any influence on his choice of destination, then Togo, Mauritania, and Equatorial Guinea look like attractive candidates. As such, the search for Gaddafi might benefit from focusing on those states. If Gaddafi secures exile elsewhere in the region—particularly in a state-party to the Rome Statute—we might fairly question the efficacy of the Court, and even the Security Council resolution that established its jurisdiction in this case.

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