Anti-Gaddafi Protest, UN Plaza, San Francisco, February 26th, 2011

The Executive Director of Human Rights Watch, Mr. Kenneth Roth, has stated that the United Nations Security Council has finally lived up to its duty in referring Libya to the International Criminal Court. But what is the likelihood that Colonel Qaddafi will ever see the inside of this court? With foreign forces already strongly enforcing a no-fly zone, it seems that the stronghold that Colonel Qaddafi had is fast slipping away. While this comes as good news, it remains to be seen how this will end, and more specifically, whether Colonel Qaddafi will come out of this alive in order to face trial.

In terms of what the political leaders are saying, the US Secretary of Defense, Robert Gates, has stated that it would be “unwise” to target military action directly towards Colonel Qaddafi. Alan Juppé, the French foreign minister, said that operations would continue until Colonel Qaddafi accepted the ceasefire. When questioned whether the military action was aimed at removing Colonel Qaddafi from power, Juppé responded plainly, “No. The plan is to help Libyans choose their future”.

Legally speaking, the Security Council resolution primarily authorized two forms of military action by foreign states. These were the enforcement of a no-fly zone, and the adoption of “all necessary measures” in the foreign states’ efforts “to protect civilians and civilian populated areas under the threat of attack”. What is meant by “all necessary measures” is unclear. While the resolution allows military intervention that would prevent Colonel Qaddafi from using his forces against the Libyan civilian population, it seems that an attack on Colonel Qaddafi himself could be justified, also in the name of protecting civilians or a civilian-populated area.

This is obviously not the desired strategy for any of the foreign powers, as they hope that the Libyan rebels will be able to overthrow Colonel Qaddafi by themselves, requiring only limited assistance. However, depending on how the unrest pans out, more foreign intervention may well be required. Retired Air Marshal Geoff Shepherd has said that the foreign states have two options: to either allow a Gulf War I scenario in which the dictator survives, or pursue a Gulf War II outcome in which he is removed by force. Given Colonel Qaddafi’s proven resistance to surrendering, the latter action may well be taken. In any case, whether toppled by the Libyan rebels, foreign troops, or as the case may be, a combination of both, it could be possible that Colonel Qaddafi would not survive to face trial. Indeed, Qaddafi’s former Justice Minister, Mohamed Mustafa Abud Al Keleil, believes that Colonel Qaddafi would commit suicide before allowing himself to be caught.

How the situation in Libya will be resolved remains too difficult to predict at this stage, yet it is clear that the probability of Colonel Qaddafi surviving long enough to appear before the International Criminal Court is small. Although the Security Council has made an admirable attempt to hold this world leader accountable for crimes against humanity, the reality of the situation indicates that Colonel Qaddafi may never be tried. A small consolation might be that, at the very least, some other members of Qaddafi’s government may survive to one day face trial in The Hague. The battle for freedom in Libya may well be won, but let’s hope that the battle for justice is not defeated in the process.