Bigger (and harder) legal issues

Marlise Simons has an article in The New York Times about indicting Qaddafi:

The International Criminal Court in The Hague issued arrest warrants for Libya’s leader, Colonel Muammar el-Qaddafi, one of his sons, and his intelligence chief, accusing them of crimes against humanity during the first two weeks of the uprising in Libya that led to a NATO bombing campaign.
In addition to Colonel Qaddafi, warrants were issued for Seif al-Islam Qaddafi and the chief of military intelligence, Abdullah Senussi, the Libyan leader’s brother-in-law. Reading out the decision, the presiding judge, Sanji Monogeng of Botswana, said there were “reasonable grounds” to believe that the three were criminally responsible for the murder and persecution of hundreds of civilians during peaceful protests in February.
The decision, by a three-judge panel, said it was impossible to know the number of people killed or imprisoned, because the crimes were covered up.
The order, another step in the isolation of the Qaddafi regime, raised the questions of how and whether the court could gain custody of the men, since it has no police powers.
Colonel Qaddafi’s government, which is not among the 115 countries that recognize the court, denounced the ruling. Libya’s justice minister, Mohammed al-Qamoodi, was quoted as saying the court “is a tool of the Western world to prosecute leaders in the Third World.”
One possible solution, lawyers said, would be for Libyan rebels to capture the men and send them to The Hague. But even as rebel fighters have loosened Colonel Qaddafi’s grip on the mountain towns southwest of Tripoli in recent weeks, they have been unable to reach the heavily defended capital. Rebels based in the mountains have pushed north and east to the town of Bir al-Ghanam, roughly one hundred miles from Tripoli, in heavy fighting with Qaddafi forces.
Failing a rebel capture of Colonel Qaddafi, NATO, now past the hundredth day of its air campaign against his forces, could expand its mandate to include the arrest of the three Libyans. But any overt or covert operations to track down the suspects would require that NATO leaders revise their policy of limiting alliance actions to aerial attacks.
Prosecutors in The Hague hope that the United Nations Security Council, which has requested the investigation of possible crimes in Libya, will find ways to encourage the arrest of the suspects and allow the court to go beyond statements and orders that may not be enforced. But diplomats may oppose such a move, on the grounds that they want to keep the road to a political solution open, as they have previously said. Even so, Colonel Qaddafi and his inner circle have consistently resisted offers of safe passage to exile abroad. “Qaddafi has made clear his determination to hang on,” said Richard Dicker of Human Rights Watch. “It defies belief that his arrest warrant is an obstacle to a negotiated settlement of the Libya crisis.”
The court accusations were limited to events from 18 February to “at least” 28 February, before a full-scale conflict erupted between the Qaddafi regime and rebel forces and well before the start of the NATO air campaign on 19 March. Nonetheless, the prosecutor has said he will investigate possible violations by the rebel side, but has not mentioned civilians deaths the Libyan government has blamed on NATO.
The judges’ statement said that Colonel Qaddafi would have to answer charges of crimes because he had “absolute, ultimate, and unquestioned” control over the state. His son Seif al-Islam was described as “the most influential person” in Colonel Qaddafi’s inner circle, with control over finances and logistics and “the powers of a de facto prime minister.” The judges said that Senussi had directly ordered the February attacks on civilians in Benghazi as the head of military intelligence, “one of the most powerful and efficient instruments of repression.”
The three men are not expected in The Hague anytime soon. Nevertheless, some politicians and diplomats say they see arrest warrants as useful tools against political leaders once they are identified as potential war criminals. Omar Hassan al-Bashir, the Sudanese president, wanted by the court on genocide charges, retains strong support at home, but has been forced to skip several international meetings for fear of arrest.
Even leaders from countries friendly to Bashir have kept him at bay by saying that envoys from other countries would refuse to attend gatherings with him. Bashir, who was traveling to China on Monday, had to postpone his meetings with Chinese officials when he was forced to change his flight plans after a request not to go through Turkmenistan’s airspace.
For the court, which has jurisdiction over cases starting when it opened in 2002, the arrest warrant for Colonel Qaddafi was the second for a sitting president, after that of Bashir. Other international courts have indicted two sitting presidents for war crimes, Charles G. Taylor of Liberia and Slobodan Milosevic of Serbia. Both were eventually arrested and brought to trial.