Qaddafi's Arrest Warrant: To Seal or Not to Seal

Muammar Qaddafi’s recent offer to talk has raised the question of whether the transition to peace is helped or hampered by the public arrest warrant issued by the International Criminal Court (ICC). Although there is value to “naming and shaming” leaders accused of mass atrocities, keeping indictments confidential through the sealing of arrest warrants may ultimately better facilitate the implementation of international justice.

The indictment of leaders such as Qaddafi is embedded within the “peace vs. justice” debate. On one hand, the immediate pursuit of justice is portrayed as an apparent impediment to peace since no rational leader will negotiate themselves out of power and into a courtroom. On the other side, it is argued that there can never be lasting peace if justice does not stay the hand of vengeance. A mid-way position argues that the two concepts can co-exist if  justice demands are sequenced in a manner that prioritizes the immediate realpolitik demands for compromises, such as amnesty or exile, at least until it becomes politically expedient to implement accountability.

Although there may never be one right answer, particularly given the varied complicated circumstances of any given case, the manner in which an international arrest warrant is issued can greatly impact on this “peace vs. justice” dynamic.

A public international arrest warrant, as in the case of Qaddafi, appears to create a face-off between justice and politics. However, by definition, international justice is non-negotiable. As with any legal system, the ICC, as the bastion of international justice, cannot be viewed as a legal institution which, once invoked, can be disregarded.  The problem is that whilst an indicted leader remains in power, the current set-up of our international system directs international actors to this indicted leader in order to implement the many complicated aspects of conflict resolution. This results in situations such as Sudan’s appointment of ICC suspect Ahmad Muhammad Harun as head of the county’s humanitarian operations, thereby requiring coordination between a wanted war crimes suspect and relief agencies, including the United Nations.

In contrast, an arrest warrant issued under seal is withheld from the public. It is only accessible to persons authorized by the court, typically selected national law enforcement officers which the court relies upon to implement arrests, given that it does not have its own police force. The person subject to the arrest warrant therefore does not know that he or she is wanted by the ICC and is less likely to implement steps to evade being apprehended. This confidential process therefore enables greater maneuverability in tracking suspects and planning an arrest strategy.

Although it may be too late to do this against Qaddafi, a review of the past practice since the ICC began operations in 2002, shows that sealed arrest warrants have proved highly successful in obtaining transfers. In all cases where arrests were achieved, the arrest warrants were first issued under seal for several weeks or months, then unsealed and made public on the day of the arrest. The cases where arrests were successfully implemented in this manner concerned three militia leaders arrested in the Democratic of Congo and two Congolese militia leaders who were arrested in Belgium and Germany. For one other accused from the Congo and for the three accused in the Uganda situation, arrest warrants were also initially issued under seal and unsealed several months later, although these arrests are not yet implemented. For the three accused in the Darfur situation who voluntarily appeared for their confirmation of charges proceedings, the requests for them to surrender to the Court were also initially issued under seal and unsealed a few days prior to their initial appearance. As an example for the rationale behind sealing arrest warrants, the prosecutor in the Katanga case asserted that a sealed warrant was necessary to secure the arrest, surrender and transfer of the accused and it was requested that the judges not unseal the warrant until the accused was transferred to a location where his security and integrity of detention could be guaranteed.

In which cases has the ICC prosecutor decided not to issue arrest warrants under seal? First against Bashir, the leader of Sudan, and two other alleged allies. Second, against six accused leaders within and allied to sections of the Kenyan government. And third, against Qaddafi, the besieged leader of Libya, and two others from his ruling apparatus. So requests for unsealed arrest warrants appear to be made when the international justice stakes are at their highest, when the peace vs. justice debate is most sensitive to demands to place accountability front-and-center. But does this strategy work?

It may be too early to tell. For Darfur, the arrest warrant against Bashir has been pending since March 2009, and for the other two accused, arrests have been sought since April 2007. These arrest warrants have consistently been disregarded, with Bashir frequently traveling to countries which are obliged to implement ICC arrest warrants. For the six accused in the Kenya case, they voluntarily traveled to The Hague for their initial appearance, and in a few weeks time we will see if they will appear for their confirmation of charges hearing. Should their voluntary cooperation cease, it remains to be seen whether Kenya will arrest members of its own government and send them to The Hague.

We have precedents from other international tribunals which, as opposed to the permanent ICC, were set up either on an ad-hoc basis or as hybrid courts established within the national legal system. The International Criminal Tribunal for the Former Yugoslavia pioneered the use of sealed arrest warrants under prosecutor Louise Arbour and this was widely credited for the eventual arrest of Milosevic. More recently, the Special Tribunal for Lebanon issued sealed indictments in the investigation of the killing of former Prime Minister Rafic Hariri.

The case at the ICC against Qadaffi has proceeded with remarkable speed. The decision to open an investigation was made within five days of receiving the referral from the Security Council. The prosecutor’s application to the pretrial chamber for arrest warrants was then submitted 11 weeks later and was granted within six weeks. Meanwhile, the advancement of the rebels is consolidating in a similarly rapid manner.

The early naming and shaming of Qaddafi may have assisted this process by contributing to the delegitimization of Qaddafi as the leader of Libya and as a potential power-broker in any future transition.

But perhaps a sealed arrest warrant would have provided more options for securing his arrest.