Friday, 4 March 2011

Big Improvement at ICC as Prosecutor Moves Fast on Libya

Yesterday, the Prosecutor of the International Criminal Court announced he was initiating an investigation in the Situation in Libya. The Situation in Libya was referred to the Court last Saturday, 26 February 2011, by Security Council Resolution 1970. The Security Council can refer situations to the Court in accordance with article 13(b) of the Rome Statute. Under article 53, when situations are referred to the Prosecutor he is to decide to initiate an investigation unless he decides there is no reasonable basis to proceed. 
The Prosecutor’s prompt action contrasts with the only previous case of referral by the Security Council, that of the Situation in Darfur, Sudan. Security Council Resolution 1593 was adopted on 31 March 2005. The Prosecutor took more than two months to decide to initiatie an investigation. There was much criticism at the time, because of the apparent lack of urgency in the Office of the Prosecutor. This suggested a lack of confidence in the deterrent effect of the Court. After all, if international justice is a genuine deterrent, then one would expect the system to be in more of a hurry.
Five situations have now been referred to the Court, two by the Security Council and three by States parties, in accordance with article 14. The length of time from referral to the decision to open an investigation has varied from slightly more than two months (Democratic Republic of the Congo, Darfur) to more than two years (Central African Republic). The average for the first four referrals is 302 days. With five days for Libya, the Prosecutor has set a new standard. It is to be hoped that this can be maintained in the future.
The next step is for the Prosecutor to seek the issuance of arrest warrants. In Darfur, this took almost two years. That is far too slow. But if he can drop the time his decision to open an investigation from an average of 302 to 5, maybe he can do something similar with the request to issue an arrest warrant.
A fine example was set by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia when she applied for an indictment against Slobodan Milosevic on 22 May 1999 with regard to the situation in Kosovo, which had erupted only weeks earlier. The indictment focused on a campaign of ethnic cleansing that had begun in late March 1999, approximately eight weeks earlier. So eight weeks would be a good target for the Office of the Prosecutor concerning the Situation in Libya. It should be able to prepare arrest warrants before the end of April.
Then the Court will have its next big test. The judges have not exactly been speedy in issuing arrest warrants once the applications are made, typically taking more than six months for this stage in the proceedings. By contrast, in the Milosevic case the International Criminal Tribunal for the former Yugoslavia issued the indictment two days after the application was made. That’s a good standard to live up to. In preparation, their legal assistants might get started now preparing the draft decision, so it is ready to go once the Prosecutor makes his move. We already know the names of the ‘usual suspects’. The Prosecutor has said his list includes President Gaddafi and sons. Security Council Resolution 1970 also provides a list of names which ought to be a good basis on which to proceed.
The Security Council Resolution itself is disappointing in that it repeats two of the obnoxious paragraphs that had been included in 2005. These provide a form of immunity for nationals of non-party States involved in peacekeeping missions, something which is probably incompatible with other norms of international law, and they specify that the costs of the case are to be borne by the Court rather than by the United Nations. It was often said that these clauses were included at the behest of the United States, which made sense in 2005 but seems less easy to explain in 2011, now that Washington has become the best friend of the Court.

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