PhD studies in human rights: International Justice on Steroids: the Gadafy Arrest Warrant

Tuesday 28 June 2011

International Justice on Steroids: the Gadafy Arrest Warrant

It will not be news to readers of the blog that yesterday a Pre-Trial Chamber of the International Criminal Court issued an arrest warrant against Libyan ruler Gadafy and two of his associates. They consist of charges of crimes against humanity (murder and persecution) in the suppression of the pro-democracy movement. The Chamber notes that the alleged acts took place in February. In other words, the proceedings do not involve the armed conflict that has taken place since early March.
Yesterday's decision proves that the Court can work much more quickly than it has in the past. Compare the speed of the proceedings with those of the other situation referred by the Security Council, that of Darfur.

In Darfur, the Prosecutor took 67 days to decide that it should initiate an investigation following the Security Council Resolution. In Libya, the Prosecutor took 4 days to make the same decision.
In Darfur, the Prosecutor took 23 months following the Security Council resolution to apply for the first arrest warrants. He explained the lack of progress to the Pre-Trial Chamber by claiming he could not investigate within the country, and complained when the Pre-Trial Chamber asked Antonio Cassese and Louise Arbour for a second opinion on the matter. In Libya, he took two and a half months. This time, the Prosecutor did not ask for more time because of difficulties getting access to the crime sites.
In Darfur, the Pre-Trial Chamber took more than seven months to issue a decision on the application for an arrest warrant against President Bashir. In Libya, the Pre-Trial Chamber took less than a month and a half.

So the Court is moving much faster. There is a greater sense of urgency. It is a very welcome development. In the future, it will be hard to return to the lethargic ways of the past.
An issue that has never been satisfactorily addressed by the Chambers of the Court is the temporal scope of referrals. In the case of Libya, Security Council resolution 1970 concerns events subsequent to 15 February 2011. But when does it end? Has the Security Council given jurisdiction to the Court over Libya for the indefinite future? In the case of Sudan, which was referred to the Court by the Security Council in 2005, the initial charges involved acts allegedly perpetrated prior to the adoption of Resolution 1593. But subsequent charges, including those against President Bashir, concerned events that occurred after the Resolution.
Perhaps another Security Council resolution is required in order to stop the referral. If this is the case, it creates a rather perverse situation where a single permanent member - quite likely a non-Party State - can veto such a measure.
Similar issues arise with respect to State Party referrals made pursuant to article 14. There have been three of these, concerning Uganda, the Democratic Republic of the Congo and the Central African Republic. Do they come to an end at some point? Who decides? It seems to be well-accepted that the State Party cannot withdraw a referral once this has been made. But can it declare that the temporal scope of the referral has ended? The matter seems less serious than with Security Council referrals under article 13(b), because the Court has jurisdiction over the situation concerning a State Party whereas it requires the Security Council to give it jurisdiction when a non-Party State (the case of Sudan and Libya) is concerned

1 comment:

K said...: I would love to know why Libya and not bahrain.. the consensus in the left wing media is that the ICC is as political as the US and EU and it is only intervening here because of political pressure.
In turn the US and EU are only in Libya because of deals and resources but gets away with its 'regime change' under the guise of a human rights crusade. Bahrain which suffered similar deaths in numbers has recieved no attention, nor has yemen. This makes the ICC look untrustworthy and biased.; 28 June 2011 at 14:47

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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

Tuesday 28 June 2011

International Justice on Steroids: the Gadafy Arrest Warrant

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