US and allies seek a refuge for Qaddafi

[This is the headline over a report published today on the website of The New York Times. It reads in part:]

The Obama administration has begun seeking a country, most likely in Africa, that might be willing to provide shelter to Col Muammar el-Qaddafi if he were forced out of Libya, even as a new wave of intelligence reports suggest that no rebel leader has emerged as a credible successor to the Libyan dictator.

The intense search for a country to accept Colonel Qaddafi has been conducted quietly by the United States and its allies, even though the Libyan leader has shown defiance in recent days, declaring that he has no intention of yielding to demands that he leave his country, and intensifying his bombardment of the rebel city of Misurata.

The effort is complicated by the likelihood that he would be indicted by the International Criminal Court in The Hague for the bombing of Pan Am Flight 103 over Scotland in 1988, and atrocities inside Libya.

One possibility, according to three administration officials, is to find a country that is not a signatory to the treaty that requires countries to turn over anyone under indictment for trial by the court, perhaps giving Colonel Qaddafi an incentive to abandon his stronghold in Tripoli.

The move by the United States to find a haven for Colonel Qaddafi may help explain how the White House is trying to enforce President Obama’s declaration that the Libyan leader must leave the country but without violating Mr Obama’s refusal to put troops on the ground.

The United Nations Security Council has authorized military strikes to protect the Libyan population, but not to oust the leadership. But Mr Obama and the leaders of Britain and France, among others, have declared that to be their goals, apart from the military campaign. (...)

About half of the countries in Africa have not signed or ratified the Rome Statute, which requires nations to abide by commands from the international court. (The United States has also not ratified the statute, because of concerns about the potential indictment of its soldiers or intelligence agents.) Italy’s foreign minister, Franco Frattini, suggested late last month that several African countries could offer Colonel Qaddafi a haven, but he did not identify them.

Even though Colonel Qaddafi has had close business dealings with the leaders of countries like Chad, Mali and Zimbabwe, and there have been pro-Qaddafi rallies elsewhere recently across the continent, it was unclear which, if any, nations were emerging as likely candidates to take in Colonel Qaddafi. The African Union has been quietly sounding out potential hosts, but those negotiations have been closely guarded.

[The following is an excerpt from a post on the Wronging Rights blog:]

An article in today's New York Times suggests that efforts to find an exit for Colonel Gaddafi are "complicated by the likelihood that he would be indicted by the International Criminal Court in the Hague for the bombing of Pan Am 103 in 1988, and atrocities inside Libya."

This is pretty epically incorrect.

Gaddafi may well face charges at the ICC for his regime's violent response to the protests that sparked the current civil war, but he will most certainly not be charged for the bombing of Pan Am 103. The ICC has jurisdiction only over events that occurred after the entry into force of the treaty establishing the court (the Rome Statute), which took place on July 1, 2002. The 1988 Lockerbie bombing is decidedly not subject to the court's jurisdiction.

Any atrocities committed by Gaddafi in Libya between July 1, 2002 and the current crisis are also unlikely to be the subject of an ICC warrant. Libya is not a signatory of the Rome Statute and has therefore not accepted the ICC's jurisdiction over crimes committed on its territory. Consequently, the only way for regime crimes to be tried at the ICC is if the Security Council refers them to the court. Security Council resolution 1970 did just that, but it explicitly limited the scope of the referral to "the situation in the Libyan Arab Jamahiriya since 15 February 2011."