Indicting Gaddafi for War Crimes: Will It Help or Hurt?

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Joseph Eid / AFP / Getty Images

Libyan Leader Gaddafi stands outside a tent at his Bab al-Aziziya residence in Tripoli on April 10, 2011.

Muammar Gaddafi and his family could be hit with war-crimes indictments within the coming weeks for his brutal crackdown against unarmed protesters in eastern Libya last February, turning him and his top officials into international fugitives — and probably burying any hope of a ceasefire deal or an arrangement for quiet exile for Gaddafi and his family as a way of ending the war. As if to emphasize the regime's defiance on Wednesday, Gaddafi loyalists shelled the rebel port of Misratah where an international aid ship had docked, reportedly killing four.

Underlining the Libyan leader's mounting isolation, one of his closest pre-war allies, Turkey's Prime Minister Tayyip Erdogan, called on Gaddafi to resign on Wednesday, saying that he should hand power to "the Libyan people" as a way of securing the country's future. That was a dramatic reversal, just five months after Erdogan few to Tripoli to receive the Al-Gaddafi International Prize for Human Rights, Libya's highest honor for foreign leaders. As recently as last month, Turkish diplomats in Tripoli served as one of one the last remaining conduits to Gaddafi for Western leaders, and on several occasions Turkish diplomats have negotiated the release of Western journalists detained by Gaddafi's forces.

But those diplomatic efforts are now over. And international attempts to carve out a political compromise between the rebel leaders and Gaddafi's regime seem to be fading fast.

The low point in diplomacy could come with the International Criminal Court prosecutor's Luis Moreno-Ocampo briefing to the United Nations in New York, about what his investigators have found since they began probing Gaddafi's crackdown on rebels; he is scheduled to present his report next week to a judge in The Hague, in order to recommend indictments against top Libyan officials on a range of war crimes, which the report claims have been widespread. "The shooting at peaceful protesters was systematic, following the same modus operandi in multiple locations and executed through Security Forces," says the report, a summary of which was shared with TIME, on condition that its source was confidential. "War crimes are apparently committed as a matter of policy."

The allegations against Gaddafi's officials include rape, execution, the disappearance of many of Gaddafi's foes, and the shooting of hundreds of people. Between 500 and 700 people are believed to have been killed in February alone, before the rebels began their military campaign, according to the report. Pouring over hundreds of documents and in interviews with about 45 people, the investigators drew patterns across different parts of the country, suggesting that the orders to open fire on protesters came from a centralized command — in all likelihood, Gaddafi and his top officials. Proving that the crackdown was organized from the top will be crucial to winning a war-crimes trial against Gaddafi.

Building a legal case against Gaddafi's regime is one thing, but hauling the Libyan leader into the International Criminal Court 1,400 miles from Tripoli could prove daunting, if not impossible. While Gaddafi has repeatedly offered to negotiate a "ceasefire" with Western leaders in recent weeks, he rejects any notion of abandoning power, let alone leaving Libya. On the contrary, he's made it clear that he will fight to the death, if need be.

In fact, human-rights groups believe Gaddafi's sons — several of whom have key military roles — are far more likely to face trial than Gaddafi himself. "Gaddafi's made it very clear he won't leave Libya under any circumstances, so getting him in front of the International Criminal Court is a very unlikely occurrence," says Peter Bouckaert, Emergencies Director for Human Rights Watch, speaking from Geneva. "The more likely impact is on his children and his top commanders." Bouckaert believes one benefit of war-crimes indictments might be to persuade Gaddafi's sons to break ranks with the leader (something they've shown no signs of doing so far), perhaps for a deal. "They are still young," he says, "and facing some very tough choice about where they would like to be in a few years from now: dead, in prison, or trying to cut their ties to their father before it's too late."

Yet even arresting Gaddafi's inner circle could involve a fierce battle, similar to the bloody firefight that netted Serbian leader Slobodan Milosevic in 2001, when commanders stormed his headquarters in Belgrade; even then, Milosevic died in a prison in The Hague five years later, when his hugely expensive trial was still a long way from over.

Holed up in Benghazi, Libya's rebel leaders wrote to the U.N. prosecutor last month, saying that they expect "fast implementation of arrest warrants." But the U.N. court is hardly known for its speed. An equally likely example of what U.N. prosecutors could face in bringing Gaddafi's top officials to trial is that of Serbian politician Radko Mladic, who has been in hiding since prosecutors in The Hague indicted him for war crimes in 1995. That was 16 years ago.