Sunday, 27 February 2011

Libya Referred to International Criminal Court by Security Council

A few hours ago, the United Nations Security Council unanimously referred the situation in Libya to the International Criminal Court. Here is the text of the Security Council press release. The measure is likely to have an important deterrent effect on the crumbling regime in Libya. Even if Gaddafi himself is not chastened by the threat of prosecution, those that remain around him will be. It is a great development for the Court, but also a test. Now it must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis. In the past, for example when the Security Council referred the situation in Darfur (in March 2005, Resolution 1593), the Prosecutor took nearly two years before laying charges. I think that something more immediate is expected.
The people of Libya cannot wait two years for the wheels of justice to start turning. Let it be recalled that in 1999, as war raged in Kosovo, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, Louise Arbour, made an application for an indictment against Serb President Milosevic within a matter of a few weeks. And the Tribunal issued the indictment within a day or so, together with an order freezing his assets. This is the sort of urgency that the International Criminal Court now needs to display.
Today's Resolution is significant because the United States voted in favour. In 2005, it abstained in the vote.
But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I'm referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

6 comments:

Andreas said...

Maybe the cases are different because "Cast Lead" was a war between one country and another territorial entity?

Leslie said...

What are the legal land mines of the Security Council referring Libya, while some members of the Security Council are not signatory to ICC?

Deborah said...

Professor, about selectivity, actually the most recent opportunity the Council had to pair with international justice (not counting the ongoing situation in Burma)was in Sri Lanka in 2009 where violence led to the death of approximately 6,500 civilians in 4 months (an ubber-extremely conservative figure).

The report by Prof. Alston and another one by the International Crisis Group reveal tens of thousands of Tamil civilian wounded and hundreds of thousands deprived of adequate food and medical care, resulting in more deaths.
Allegations against the government include intentional shelling of civilians, hospitals and humanitarian operations, both war crimes and crimes against humanity, and with some proven intent against this ethnic group.... well, the big G word.

Windsong said...

It is a great development given that Russia, China and the USA all voted for the resolution rather than simply abstaining. Is this historic development a de facto recognition of the ICC by the non-signatory superpowers or is it a little cynical. I note that the resolution also decides that the 'cost' of the referral will be borne by the current State Parties to the Rome Convention rather than by the UN. Also Libya is not a signatory and as it does not have a constitution in operation can the referral be applied retrospectively to Ghadaffi if ever the tribal councils in Libya develop a new, possibly democratic, government and constitution? Finally the ban on travel on Ghadaffi's family will possibly infringe his legal rights as his daughter almost certainly would be his defense lawyer (she was on the team that defended Sadam Hussein) and she is now precluded from travelling.
Best,
Roger Derham

Magnus Taylor said...

The ICC is in danger at the moment - if Kenya pulls out (with Sudan's backing) then it might trigger the collapse of teh whole edifice

See more on this at the Royal African Society http://www.royalafricansociety.org/component/content/818.html?view=article

Deborah said...

Professor,
A follow up question. What do you make of the absence of a determination under Article 39 in Resolution 1970? In the Libyan situation it was not until Res. 1973 that the Council made such determination.

The absence of a determination had been one of the arguments against the validity of 1422 (2002). No determination = no powers under Chapter VII.

D. Ruiz Verduzco