Qaddafi's Choice: Power or Prison?

"The Elba option is impossible in the modern world," sighed an unhappy German diplomat.

Elba is a small, scenic island off the coast of Tuscany. Napoleon Bonaparte was awarded the island as a tiny principality in a face-saving deal after his first abdication in 1814. (Napoleon quickly reneged, returned to France and met his Waterloo -- but that's another story.)

A century or two ago, overthrown rulers like Napoleon were often allowed a plush retirement. Even the German kaiser, who had plunged all of Europe into the bloodbath of World War I, was allowed to live out his days in a palace in the Netherlands.

Modern dictators meet grimmer endings.

The shah of Iran sought refuge in six countries before finally dying in Egypt 18 months after he left his country.

Slobodan Milosevic of Serbia died in a Dutch prison. Manuel Noriega of Panama still lives inside a French one. Iraq's Saddam Hussein was hanged, Liberia's Charles Taylor is incarcerated and Augusto Pinochet's legal immunity was revoked and he was held in Britain on a warrant from Spanish authorities, then sent to Chile to face charges there.

These trials represent a great step forward for justice. But they also create an incentive problem: the modern dictator has no exit. If he loses power, he faces the penitentiary.

As The New York Times reported Sunday, the Obama administration is facing the consequences of this new reality as it struggles to find an end-game to the war in Libya.

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 .... 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.

Ironies abound here.

When the Obama administration pressed for a U.N. Security Council Resolution authorizing force against Qaddafi, the resolution included language authorizing an International Criminal Court prosecution of Qaddafi.

During the 2008 presidential campaign, then-candidate Obama praised the work of the ICC as "in America's interests."

Since the election, Secretary of State Hillary Clinton has welcomed ICC prosecutions of persons responsible for atrocities in Darfur.

Unnamed State Department officials have told the media that Bush-era opposition to ratification of the ICC treaty is "under review."

Yet had the Obama policy on the ICC moved faster, the Obama administration's plans for Libya would look even messier than those plans now do.

The Obama administration is fighting a half-hearted war in Libya. It is applying force in increments, hoping that something will turn up to rescue the administration from a commitment it seems to have regretted as soon as it was issued. The administration wants a negotiated outcome, yet it has deprived itself of the most important instrumentality to achieve that outcome: a credible promise that Qaddafi can quit power and survive.

There exists a network of foreign-policy thinkers -- many of them now working in the Obama administration -- who believe they can achieve international peace by entangling U.S. policy ever more thickly with international law. No war unless the Security Council approves.

Justice for dictators dispensed by international tribunals. Now that network has met its first hard test -- and they are discovering the unworkability of their ideas. Let's hope they learn a lesson.

More likely, they will just explain the lesson away as an unfortunate "exception." They will repeat Albert Einstein's remark, unaware that it was meant as a joke: "If the facts contradict the theory, then the facts are wrong, because the theory is true."

From a moral point of view, Qaddafi deserves the same fate as Saddam Hussein. Yet foreign policy does not always admit the moral point of view -- much less the legal point of view. If the Obama administration is not willing to blast Qaddafi out of power, it has left itself no choice but to buy him out.

Originally published at CNN.com

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