On Feb. 26, 2011 the UN Security Council adopted a unanimous resolution (No. 1970) referring the situation of Libya to the prosecutor of the International Criminal Court (ICC). The referral comes after demonstrations protesting the leadership of Colonel Muammar el-Qaddafi led to a division of the country between pro-Qaddafi government-controlled areas and anti-Qaddafi rebel-controlled areas. Qaddafi had said on Libyan television that he planned to strike hard against demonstrators. Witnesses then claimed that pro-Qaddafi forces fired on demonstrators, and that at least 300 people arrived at hospitals dead or wounded in the first days.
Q: Why is the UN Security Council referring Libya to the ICC now, before details are known about what's happening on the ground? Is referring Libya to the ICC at this stage setting a new precedent for preventive action?
The Security Council has indeed acted with unusual speed—in the past it has set up commissions of inquiry before deciding whether or not further action was necessary. In this sense this can be seen as a positive attempt to prevent further loss of civilian life. The practical difficulties of information gathering in such circumstances may have persuaded the council that speed was the more important consideration.
Resolution 1970, passed on Saturday, consists of a number of measures aimed at putting pressure on the Qaddafi regime, including sanctions (an arms embargo, a travel ban and an assets freeze) and a referral to the ICC. This is only the second referral to the ICC made by the Security Council, the first being the situation of Darfur in 2005. Unlike the Darfur resolution, where the USA and China abstained, the Libyan resolution was unanimous.
More specifically, the Security Council members unanimously considered that the “widespread and systematic attacks” taking place in Libya against the civilian population may amount to crimes against humanity. They agreed that the adoption of the resolution would contribute to ending the ongoing violence against the population, prevent future attacks and ensure accountability.
There was also a jurisdictional issue at play in the Security Council referral. As Libya is a non-state party to the Rome Statute—the treaty that established the ICC—for the court’s prosecutor to be able to move forward, either the Security Council had to refer the situation to the court, or Libya had to make a declaration accepting the exercise of jurisdiction by the ICC for the crime under Article 12(3) of the statute. It was rather unlikely that Libya was going to accept the court’s jurisdiction given the alleged involvement of its top authorities in the violence and the fact that it was actually one of the seven states that voted against the Rome Statute in 1998.
Q: What exactly does a "referral" by the Security Council mean?
A referral is what is known as a trigger mechanism. It simply asks the ICC prosecutor to determine whether or not an investigation should be opened. The prosecutor is not required to open an investigation as a result of referral. The decision is entirely in his hands. This is important to remember as an issue about the prosecutor’s independence. The prosecutor does not take instruction from anyone in terms of who or what he will investigate.
When the UN Security Council refers a situation to the prosecutor, the Rome Statute requires that a preliminary examination be conducted to assess if the situation merits the opening of a formal investigation. If, after the assessment, the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he may then request to the Pre-Trial Chamber to summon or issue arrest warrants for those considered responsible for the alleged crimes.
The Security Council’s decision on Libya marked the first time it referred a situation unanimously (15-0) and, as mentioned earlier, the second time it referred one. The unanimity of the vote means that even permanent Security Council members that are not state parties to the ICC (China, Russia and the United States) all backed the referral of Libya.
Q: How will a formal investigation be opened by the prosecutor? How would such a case on Libya differ from ICC cases underway on Sudan or Congo?
The prosecutor has already indicated that he will complete the preliminary examination in a matter of days. This phase is procedurally required under the Rome Statute. If he finds that there is a reasonable basis to believe crimes under the jurisdiction of the court have been committed (genocide, war crimes and/or crimes against humanity), that they are of sufficient gravity to justify investigation, and that there is no reason not to proceed in the interests of justice, he will notify the court’s presidency of his decision to open an investigation.
The investigation itself depends on the circumstances. In Darfur the prosecution did not enter the territory of Darfur for investigative purposes but relied significantly on refugee testimony. In Libya the prosecutor has already invited the submission of information through social networks such as Facebook and Twitter as a way to overcome access difficulties, and has been liaising with the Arab League, the African Union, the UN Council on Human Rights, the UN High Commission for Human Rights and the UN Secretariat, as well as with states and nongovernment organizations to collect materials. This will help in the initial phases of the investigation.
In the case of Libya there has also been a significant number of high-level defectors, which raises the possibility of knowledgeable sources providing information to the investigation relatively quickly.
Q: Governments have not always been in agreement about the role of the ICC in international justice. Now we're seeing a unanimous action by the Security Council. Does this mean that governments are more united than ever on how to work with the ICC? Or is Libya a special case?
In simple terms it is an immensely welcome turn of events that the council unanimously recognized the legitimacy and value of the court in such a situation. It marks an important progression in the development of the age of accountability. At the same time, the council’s interests are often short term. Its failure to offer serious support to the court in Sudan indicates that what was important at one stage might in their view be less important at a later stage relative to competing political concerns.
It is clear that Libya is a special case in many ways. The apparent support of the Arab League for the referral seemed important in dissuading any would-be opponents of the resolution to persist with their doubts. Whether the council will provide the court with the necessary support in the event that an investigation is opened and arrest warrants are issued, only time will tell. In truth, that will be the time to judge the quality of the international community’s support.
Q: What happens next?
The prosecutor has said that a decision on whether to launch a full investigation will be made “within days” and that the court will act "swiftly and impartially." He added that there will be no impunity for those involved in the commission of crimes and that military commanders could be investigated and prosecuted for the actions of the troops under their control. But even if an investigation is opened, the difficulty of enforcing arrest warrants remains, as evidenced by the Darfur case.
As per the resolution text, the prosecutor is to report back to the Security Council in two months and every six months thereafter on actions taken that relate to resolution 1970.
In the meantime, other international bodies are taking action. Last week, the Human Rights Council recommended the suspension of Libya—elected to the council in May 2010—due to the government’s violent response to the protests. Yesterday the UN General Assembly voted by consensus to take the recommendation and suspend Libya from the council.
The international community’s ability to act together and quickly will continue to be important in coming weeks.
FONTE: INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE (http://ictj.org/en/news/features/4466.html)