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