PhD studies in human rights: Libya Referred to International Criminal Court by Security Council

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:

Unknown said...: Maybe the cases are different because "Cast Lead" was a war between one country and another territorial entity?; 27 February 2011 at 12:59
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?; 27 February 2011 at 15:17
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.; 28 February 2011 at 20:09
Roger Derham 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; 1 March 2011 at 14:02
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; 2 March 2011 at 12:02
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; 7 May 2011 at 19:09

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

PhD studies in human rights

Sunday 27 February 2011

Libya Referred to International Criminal Court by Security Council

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