On February 16th 2011- following a wave of uprisings throughout the Middle-East- Libya experienced a so-called Day of Rage which led to protests breaking out to challenge Colonel Muammar Qadhafi’s 41 year old iron rule- the region’s longest. During the following days, protests continued and spread to different cities. On 21st February, the conflict escalated, when the faltering government of Colonel Qadhafi struck back with a level of violence unseen in other parts of the Middle-East, quickly heading towards a humanitarian crisis.
In the wake of these events, the UN Security Council unanimously adopted resolution 1970 under article 41 Chapter VII of the UN-Charter demanding an end to the violence and imposing a list of sanctions on Libyan authorities. Most important among these is the UN Security Council’s decision to refer the situation in strife-torn Libya to the International Criminal Court (ICC) in The Hague.
Following the adoption of resolution 1970, Secretary General Ban Ki-Moon welcomed the Security Council ‘decisive action’. While it cannot, by itself end the violence and the repression, it a vital step – a clear expression of the will of a united community of nations’, he said.
With the referral of the situation to the International Criminal Court (ICC) , many nations expressed hope that the resolution was a strong step in affirming the responsibility of States to protect their people as well as the legitimate role of the Security Council to step in when they failed to meet that responsibility.
The ICC was established through the Rome Statute, a multilateral treaty that entered into force in 2002. Some 114 members are parties to the Rome Statute, including all member states of the European Union (EU), most countries in South-America and dozens of other states worldwide. In the Middle-East, only Jordan is a party. Some major powers such as China, India, Russia and the United States of America – the latter three being permanent members of the UN Security Council- are not parties to the treaty mainly out of fear for politicized prosecutions of their nationals, including their soldiers.
The support of this resolution is particularly interesting since in 2005, after many years of reports of extreme violence in Darfur, The US and China both abstained from voting to refer the situation to the ICC.
In the case of Libya, the Chinese representative stated that he had supported the resolution taking into account the special circumstances in Libya. Noteworthy is that the US, not only supported the referring of the matter to the ICC but even helped to circulate a draft resolution with the idea. According to some analysts this US enthusiasm can be considered as a step towards greater support for the ICC by the Obama administration.
The representative of Libya stated that the Security Council’s actions represented moral support for his people and was a signal that an end must be put to the fascist regime in Tripoli. He launched an appeal to all the officers of the Libyan armed forces to support their own people and welcome the referral to the ICC, as well as the decision not to impose sanctions on those who might abandon Mr. Al-Qadhafi in the end.
On March 2nd, 2011, merely four days after the adoption of resolution 1970, ICC prosecutor Louis Moreno-Ocampo announced that ‘following a preliminary examination of available evidence’, he reached the conclusion that an investigation is warranted.
The most difficult challenge the ICC will have to face is to secure arrests; without its own police force the ICC must rely on States and the International Community to assist in arrests. While arrests may take time, they are possible with the help of the international community. Charles Taylor, former President of Liberia, was apprehended in Nigeria following a three-year request to arrest him. He is currently on trial and awaiting a verdict at the Special Court of Sierra Leone (SCSL).
Whether or not, Mr. Al-Qadhafi will be arrested and seen in handcuffs in The Hague, these events of the past few weeks demonstrate how the ICC is becoming an important factor in international affairs and its influence may increase even further in the years to come.
- Mancini, M., 'The Day After : Prosecuting International Crimes Committed in Libya' in Italian Yearbook of International Law,Vol. 21 (2011), p. 85-109
- Torres Cazorla, M., ‘ Consejo de Seguridad, Libia y la Corte Penal Internacional: un análisis a la luz de la práctica reciente’ , e-book, 2012
- Knoops, G.J., ‘Prosecuting the Gaddafi's: Swift or political justice?’, Amsterdam law forum Vol. 4, No. 1, p. 78-92, 2012