On Tuesday William Hague announced that he would bring UK policy into line with the French government; potentially allowing Gadaffi to remain in Libya after relinquishing power. This raises a serious question about Europe's commitment to the international justice system, but it is not the only weakness in NATO's strategy.
The civil war in Libya has been raging for over four months. Civilians remain besieged and shelled by Gaddafi in the western city of Mistra, the central oil town of Brega has exchanged hands more times than most care to count and NATO's aerial raids seem completely unable to neutralise what is left of the ever more mobile and better camouflaged Libyan army.
As the war drags on, the difficulty now is not that the international community is stuck for ideas, in fact, the opposite is true. The real problem is that there are too many strategies floating around with various players pulling in different directions. If we are to make progress in Libya (progress defined as a transition to a stable democratic state) NATO members are going to have to answer four questions about their collective role:
1) What is the International Criminal Court for?
Calling for Gaddafi's arrest to face charges of crimes against humanity, International Criminal Court Judge Sanji Mmasenono Monageng said;
"State policy was designed at the highest level of the state machinery, and aimed at quelling by any means, including by the use of lethal force, demonstrations of civilians against the regime of Muammar Muhammad Gaddafi."
However, last week the French government ignored the ICC all together, effectively offering Gaddafi an amnesty if he agrees to step down - Britain quickly followed suit. French Foreign Minister Alain Juppe explained:
"One of the hypotheses envisaged is that he stays in Libya, but on condition, that he very clearly removes himself from Libyan political life"
A realist perspective on international politics can see the potential value in sacrificing a court case in order to tempt a dictator from power sooner rather than later. However, NATO partners should think very carefully before striking yet another blow on the credibility of our already fragile international institutions.
While it may be better for those on the ground if we can make a deal with Gaddafi, NATO will not only be undermining the ICC through refusing to enforce its warrant but it will be giving away any hope of real justice for the many hundreds of families in Libya and around the world who have suffered at the hands of Gaddafi and his state-sponsored acts of terrorism. With a significant level of support for Gaddafi in the country, there is no guarantee that he will be tried for his crimes within Libya.
2) Are we serious about supporting the Transitional National Council (TNC)?
"We're broke... We're getting decimated on the financial front lines," American-Libyan Mazin Ramadan, an economic advisor to the rebel TNC, told the Los Angeles Times in mid-July. The rebels have since become hopeful that Germany, Canada and even Malta will join the growing ranks of countries lining up to offer financial support for the Council. However, after assurances from the United States, Turkey and Italy have failed to cover costs or simply not materialised, Ramadan is cautious. "We hear a lot of promises, but it's a lot easier to promise than to deliver," he said. "We don't count on it unless it's sitting in our account."
The TNC needs roughly $3billion to covers its costs over the next six months, however, the Gaddafi regime has around $168 billion in frozen assets abroad, according to former central bank chief Farhat Bengdara. Rather than making loans to the TNC, the international community should simply allow the Council access to the assets the Libyan people rightly own through credit-lines. Some countries have shown a willingness to establish such arrangements, but this should be standardised policy if NATO wants to support the TNC while putting extreme financial pressure on Gadaffi.
3) Does NATO support the rebel's military campaign or not?
While the UK and France continue to heap on pressure from the sky, the rebels continue to build their army out of domestic vehicles, downed aircraft, scrap metal and children's toys. Unsurprisingly, the result so far has been stalemate. As the siege of Misrata intensifies once again, we should begin to ask if it is time to enable the rebels to break the deadlock themselves.
UN Security Council Resolutions 1970 and 1973 demand an arms embargo across Libya, which makes the recent French arms drop in western Libya somewhat dubious. Both resolutions allow for foreign training personnel, body armour, military communications equipment, and other non-lethal defensive military equipment. The international community should be making full use of these provisions to help break the impasse.
However, the French may well have the right idea in supplying the rebels with more reliable offensive equipment. Not only is it quite clear that the rebel forces in Misrata and Brega are struggling to overcome Gaddafi's forces, but as a result of the various embargos on Gaddafi, Libyan's who remain under his reach are now beginning to feel the strain in terms of food prices, access to healthcare and fuel. These two factors create a duel threat to the lives of civilians across Libya - where the Protection of Civilians Clause of UNSCR 1973 could be invoked. Since Gaddafi has shown no sign of compromise through negotiations, pressure through military defeat may be the only consistent means by which Libyans can liberate Libyans.
4) What happens if we win?
One of the most difficult lessons of previous international interventions is that planning a war often goes better than planning for what happens after it. This will be no different in Libya. Clare Spencer in the Financial Times succinctly outlines the problem of trying to undo decades of dictatorship and one-party rule:
"The problem is that individual arrests and bans do not undo a whole structure of interests that reach far into the state. These countries were ruled by nepotism and corruption, with business and politics intricately entwined in ways that cannot be unravelled overnight."
Furthermore, James Joyner in The Atlantic summarises numerous worries from academics, think tanks and politicians, including Libya's historical lack of bureaucratic infrastructure, further civil strife even after Gadaffi and a simple lack of interest from the international community on what happens to the Libyans post-Gadaffi.
Over the next few weeks, Libyans on both sides of the civil war are going to face deeper and deeper hardships and certainly greater bloodshed. NATO must not give up on international justice so readily, especially since Gadaffi seems completely uninterested in negotiating his departure. They must properly finance the rebels while stifling Gaddafi's economic position. They must seriously consider enabling Libyan rebels to put real military pressure on Gaddafi, but it is equally clear that NATO has to prepare itself for what happens after the Gaddafi regime collapses.