In issuing the ruling, Judge Sanji Mmasenono Monageng said there was sufficient evidence to believe that the three Libyans “have committed the crimes alleged by the prosecutor” and that “their arrest appears necessary” to ensure they appear before the Hague-based court and to prevent them from continuing further crimes against the Libyan population.
She said the court’s registrar would seek the cooperation of Libya and other governments in securing the three men’s surrender.
“This decision once again highlights the increasing isolation of the Gaddafi regime,” said NATO Secretary General Anders Fogh Rasmussen. “ It reinforces the reason for NATO’s mission to protect the Libyan people from Gaddafi’s forces. Gaddafi and his henchmen need to realize that time is rapidly running out for them. NATO is more determined than ever to keep up the pressure until all attacks on civilians have ended, until all regime forces have returned to their bases and until there is unhindered access to humanitarian aid for all those who need it.”
White House spokesman Jay Carney called the ICC warrants more evidence that “Gaddafi has lost his legitimacy.” He told reporters Monday, “This is another step in holding him accountable.”
Libyan officials did not immediately react to the issuance of a warrant on Monday, but the Tripoli government has long said it does not recognize the legitimacy of the court.
“All of its activities are directed at African leaders,” government spokesman Moussa Ibrahim said Sunday. “Is it really trying to protect the people from war crimes? Or is it just conducting a hidden agenda for the West?”
It remains highly unlikely that Gaddafi’s own government would surrender him or his inner circle.
The decision to charge the Libyan leader has sparked a debate among scholars, military officers and government officials over the role of such a politically sensitive prosecution in the midst of an armed conflict. Some officials fear it will complicate efforts to get Gaddafi to step down, while others maintain that the charge will send a powerful message to other dictators not to use lethal force against civilians.
Still, the ruling adds to the mounting international pressure on Gaddafi to yield power.
Scores of Gaddafi’s top advisers and diplomats have defected from the government since NATO began an air campaign aimed at protecting civilians and forcing Gaddafi from power. But the Libyan leader has shown remarkable staying power, surviving an onslaught of NATO bombing strikes, one of which resulted in the death of one of his sons.
Monday’s ruling marks only the second time that the ICC has sought the arrest of a sitting head of state. In 2005, the court issued an arrest warrant against Sudanese leader Omar Hassan al-Bashir, who stands accused of orchestrating a genocidal campaign against civilians in Darfur. The court has been unable to arrest Bashir, who is preparing for a visit to Beijing.
Libya is not a signatory to the treaty, known as the Rome Statute, that established the International Criminal Court, and is subject to the court’s jurisdiction only if the U.N. Security Council authorizes it. In a sign of Gaddafi’s isolation, staunch opponents of the ICC, including China and Russia, voted to approve the ICC probe of his actions.
The Feb. 26 adoption of U.N. Security Council Resolution 1970, which approved the ICC prosecution in Libya, marked the first time that the United States had voted in favor of a measure empowering the International Criminal Court.
The United States has long maintained a somewhat ambiguous relationship with the court. In his final days in office, President Bill Clinton signed the treaty establishing the court.
But the succeeding administration of George W. Bush formally withdrew the presidential signature, citing concern that the tribunal would be used to conduct politically motivated prosecutions of U.S. service members engaged in overseas operations. The White House ultimately found that the ICC could be useful to apply pressure on other governments.
In 2005, the Bush administration abstained on a resolution authorizing a similar investigation by the ICC prosecutor into alleged war crimes committed by the Sudanese government in Darfur. But it subsequently worked behind the scenes to ensure that the prosecution went forward, blocking appeals by African states to persuade the Security Council to freeze the ICC prosecution to help propel peace talks between Khartoum and Darfurian rebels.
The Obama administration has also encouraged the court to pursue cases that are consistent with U.S. interests. In February, Susan E. Rice, the U.S. ambassador to the United Nations, enthusiastically supported the British and French initiative in the Security Council to open an ICC investigation in Libya. But in an effort to address persistent concerns about U.S. exposure, Rice insisted that the resolution not impose any new legal obligations on the United States and that it provide immunity to U.S. service members engaged in military operations in Libya.
Like Ibrahim, the Libyan government spokesman, other African officials have bristled at what they see as the ICC’s disproportionate pursuit of African perpetrators.For that reason and others, some international human rights experts say the ICC prosecutor should exercise greater caution before wading into Libya.
Any successor to Moreno-Ocampo, who is scheduled to step down next year, needs to “defend the ICC against charges that it brings too little accountability while standing in the way of peace and stability,” said an article in Foreign Affairs written by David Kaye, executive director of the International Human Rights Law Program at the University of California at Los Angeles’s law school.
“Among other things, this will mean deploying the post’s powers carefully, with a full awareness of their limits,” Kaye wrote. “At times, this could require considerable restraint: for instance, the OTP [Office of the Prosecutor] might be better off not seeking any warrants in the Libya case if the Security Council is unlikely to help with enforcement.”
At the same time, Richard Dicker, an expert on the ICC at Human Rights Watch, said the arrest warrant would send “a jarring message to dictators elsewhere who thought they were beyond the reach of the law.”
Dicker challenged arguments that the arrest warrant was undercutting possible peace efforts, saying that Gaddafi has made it “crystal clear his intention to hang on to the end. It defies belief that this arrest warrant is somehow the glue that is keeping him in place and blocking a political settlement. This is someone who has stopped at nothing to retain power for four decades.”
On May 16, the ICC prosecutor charged Gaddafi with having “conceived and implemented,” a plan to “suppress any challenge to his absolute authority through killings and other acts of persecution executed by the Libyan Security Forces.” The prosecutor said Gaddafi’s son Saif al-Islam Gaddafi, and Senussi, were his chief enforcers.
According to the prosecutors’ application for an arrest warrant, the leaders “implemented a state policy of widespread and systematic attacks against a civilian population, particularly demonstrators and alleged dissidents.”
Monageng said Monday that there was sufficient evidence that Gaddafi, concerned about recent popular uprisings in Egypt and Tunisia, conceived and orchestrated a military plan to ensure that similar demonstrations in Libya would not threaten his own 40-year hold on power.
Much of the evidence of Gaddafi’s intent to violently repress the demonstrations rests on his own public statements.
On Feb. 22, in a speech on state television, Gaddafi described the protesters as “garbage” and “rats” and threatened to “clean Libya inch by inch, house by house, small street by small street, individual by individual, corner by corner, until the country is clear from all garbage and dirt.”
The prosecutor charged Gaddafi’s son with playing an “active role” in recruiting foreign mercenaries who were placed under the command of the Libyan security services and ordered to attack suspected dissidents and protesters.
On Feb. 20, Saif al-Islam Gaddafi blamed the continued unrest in Libya on “foreign agents” and threatened civil war “worse than Iraq and worse than in Yugoslavia” that would cause “thousands of deaths.”
The prosecutor singled out Senussi for his alleged role in leading a crackdown on opposition figures and demonstrators in the restive city of Benghazi, which has emerged as the capital of resistance to Gaddafi’s rule. He charged that Senussi, acting on Gaddafi’s request, “expressly ordered the shooting at civilians” in Benghazi.