Max du Plessis, Senior Research Associate, International Crime in Africa Programme, ISS Pretoria Office and Associate Professor, University of KwaZulu-Natal, Durban & Christopher Gevers, Consultant, International Crime in Africa Programme, ISS Pretoria Office
Last Saturday, 26 February 2011, the United Nations (UN) Security Council unanimously passed Resolution 1970 (2011), referring the `situation` in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of Security Council measures directed at the Libyan regime, including a travel ban and asset freezes for Colonel Muammar Gaddafi and his associates, as well as an arms embargo. It is the first concrete action by the Council in respect of the events that began earlier this month, as increasing reports of widespread attacks on civilians in Libya confirm the lengths to which Gaddafi will go to cling to power. It is also fitting that Gaddafi – who has recently been central to undermining the ICC through his political influence in the African Union (AU) – should now find his regime’s crimes referred to the Court.
This is only the second time that the Security Council has used its discretion under the ICC’s Rome Statute to refer a matter to the Court for possible prosecution. The first referral, under Resolution 1593 (2005), was made in respect of the situation in Darfur, which led to an arrest warrant being issued for Sudanese President Omar al-Bashir for war crimes, crimes against humanity and genocide (he remains at large). All three African members of the Security Council – Gabon, Nigeria and South Africa – supported the referral, notwithstanding ongoing tensions between African states and the Court over the Darfur and Kenyan investigations. Notably, Resolution 1970 made explicit reference to article 16 of the Rome Statute, which allows the Security Council to defer an investigation by the Court in order to maintain international peace and security.
Resolution 1970 is interesting in a number of respects.
First, as far as the subject-matter jurisdiction is concerned, the resolution’s preamble states that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity”. However, the Security Council’s reference is by no means binding on the Court, and the Prosecutor will have to investigate, formulate and prove any charges relating to the ongoing violence. This includes the crucial element of the attacks’ widespread and systematic nature, the distinguishing feature of crimes against humanity.
Secondly, as far as the persons potentially falling with the Court’s jurisdiction, the resolution contains a controversial provision excluding “nationals, current or former officials or personnel” of states other than Libya from the Court’s jurisdiction in respect of “alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council”. Such persons might only be prosecuted if their home states waive their jurisdiction. This proviso, which would apply to any members of an international peacekeeping operation authorised by the Security Council, was included at the insistence of the United States, as a pre-condition to allowing the resolution to pass. It does not however, contrary to media reports, place the alleged mercenaries in Libya outside the Court’s jurisdiction – since they are obviously not acting with the authority of the Council.
Further, even though the resolution refers to attacks “against civilians”, suggesting it is only the conduct of the State and its proxies that will be investigated, there is nothing stopping the Court from investigating atrocities committed by anti-government forces. In this regard the reports of migrant workers from neighbouring countries being targeted as mercenaries based on their race is disturbing and could potentially fall within the court’s jurisdiction. Thirdly, and less controversially, the referral is temporarily limited to events that have taken place since 15 February 2011.
What about the prospects going forward? As with all the other matters currently before the Court, the target of the investigation is an African country, which critics of the ICC will be quick to point out. Like Kenya, the crimes under investigation emerge from an internal political dispute that has escalated rather than a typical armed conflict involving an armed, organised rebel group or insurgency (such as Darfur, DRC, Uganda) or another state (as in the case of Georgia or Gaza). Like Sudan, the investigation will have to take place in respect of a state that is not a party to the Rome Statute and despite the government under investigation being overtly hostile to the proceedings. For these reasons, sceptics are likely to conclude that it will result in the same difficulties that have left the Court politically isolated in its region of operation (Africa), without a conviction after 10 years of operation and with increasingly impatient benefactors.
There are however aspects of the Libyan referral that are different. For one, it is surely the earliest the Court has ever become involved in a situation: just over a week since it started. This creates the potential for the Court to act as deterrent for future atrocities, and alter the conflict dynamics in a game-changing manner. It is therefore encouraging that the ICC Prosecutor has quickly seized the initiative and moved with deliberate speed to initiate an investigation into the offences. Moreover, the Libyan regime is one of the most politically isolated – both domestically and internationally – government the Court has yet been asked to investigate. This increases the prospects of states cooperating with the Court to ensure that its orders are carried out. A useful comparison here is Sudan, where the Court became involved in an established conflict, involving a government that had sufficient domestic support to ensure the Court never operated in its territory, and (to date) sufficient regional and international support to prevent its orders, most notably the al-Bashir arrest warrant, from being executed despite legal obligations on states parties to the Rome Statute – recall that Chad and Kenya, notwithstanding their membership of the ICC, allowed al-Bashir to visit their territories in defiance of the court’s arrest warrant . In Libya, the hope is that there may in due course be sufficient cooperation domestically, particularly from the ‘successor’ to the current regime should there be one, and internationally, to secure the arrest and prosecution of those most responsible for the violence.
Finally, the Libyan referral needs to be situated within the broader Africa/ICC narrative. Gaddafi has been a key protagonist in bringing the relationship to its current low – with the AU ordering non-cooperation in respect of al-Bashir, requesting deferrals in respect of both the Darfur and Kenya investigations, and attempting to amend one of the Rome Statute’s most finely balanced political compromises (article 16). One might be tempted to think he did so presciently, in anticipation that he himself might one day be caught in the Court’s crosshairs – but that would be to ignore his insufferable arrogance that appears to blind him even now to the reality of the situation. Included in that reality is that even for the AU, supporting the Libyan leader in the same manner as they have al-Bashir might be a bridge too far. Moreover, three African states voted in support of the deferral, including powerhouses Nigeria and South Africa. It will now be difficult to take seriously claims that the ICC’s involvement in Libya is a further example of the Court’s unhealthy preoccupation with Africa.
That hope should not obscure the depressing realpolitik so often at play in these cases. Because the sovereignty and power he wielded for so long appear to be slipping away, there is no real reason for the AU to fight for Gaddafi. While the AU has kept mum as the Security Council intervenes to demand accountability for the crimes in Libya, make no mistake: the apparent African support for the Libyan referral is because Gaddafi is increasingly yesterday’s man.