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Libya: a year in the life of an ICC referral

March 2, 2012

It’s been a a year since the UN Security Council referred Libya to the International Criminal Court, as the Gaddafi regime cracked down on civilians and an armed rebellion began to grow. There are now similar stirrings for international prosecutions of the Assad regime. The ICC is unlikely to get jurisdiction over Syria, as such a move would likely be blocked by Chinese or Russian vetoes. But last year, Resolution 1970 (26 Feb 2011) got a unanimous vote at the UNSC, and the Court kicked into high gear. It seems a good time to ask what a year in an ICC referral has wrought.

The ICC was clearly just one arrow in a quiver that the UNSC aimed at the Gaddafi regime. Resolution 1970 also contained an arms embargo, an asset freeze, a travel ban, and many strong words. It received a unanimous 15 votes, notably including non-enthusiasts of the ICC (the US, Russia, China, and others) and Libya’s own representative (who had defected from the Gaddafi government). Of course, these actions didn’t produce much immediate effect on the Gaddafi regime, and two weeks later the UNSC’s Resolution 1973 authorized states to take military action to protect civilians and assist humanitarian aid.

Supporters of the ICC rejoiced in Security Council backing, but there was soon skepticism. Writing in early April, after NATO forces had begun bombing Libyan government forces, Globe and Mail columnist Doug Saunders wrote:

By applying the pressure of justice to a savage leader, the ICC may have perpetuated, rather than ended, his crimes: Col. Gadhafi and his sons and generals do not dare end their campaign of violence if it means spending years in a Dutch cell.

Of course, Gaddafi didn’t end up in a Dutch cell. By October his corpse would be on display for public viewing and the NATO-assisted rebels had taken power. Debate over the ICC referral has been over over-shadowed by debate over the UNSC authorization of military action and the possible consequences for the Responsibility to Protect norm. But the Libyan referral has clearly had an impact on the ICC itself. It has also contributed another confusing data point in the ongoing ‘peace versus justice’ debate.

The ICC as Tool of the Security Council?

The framers of the Rome Statute — the treaty that created the ICC — wanted the Court to be linked to the UNSC but not controlled by it. They were less worried that the Security Council would abuse this power of referral. After all, while a referral gives the ICC jurisdiction, it is up to the Court’s prosecutor and judges to decide if there are international crimes worthy of prosecution or conviction. The UNSC can refer a situation, and the Prosecutor could come back and say “There’s nothing here that warrants investigation.” To date, only the situations in Sudan and Libya are Security Council referrals, while the rest have been initiated by a state referral (Uganda, DRC, and CAR) or by the Prosecutor’s own initiative (Kenya and Ivory Coast).

The Rome Statute’s framers were more concerned that the UNSC would block ICC action, and they set a high hurdle to do so.  Proceedings at the ICC can only be deferred by a majority UNSC vote — and P5 support or absention — and even then the deferral must be renewed each year.  Despite pressure by some African Union governments, there have been no Security Council deferrals.

While the ICC has independence from the UNSC, there are clearly political and institutional advantages to having Security Council support. Not only is the Court a young institution trying to shore up its legitimacy, it also needs money, intelligence assistance, and police or military forces to make arrests.

Perhaps this is why ICC Prosecutor Luis Moreno-Ocampo leapt into action on Libya, in contrast to the glacial pace of most other investigations. He initiated his case in just five days. By June the Court had issued arrest warrants for Colonel Gaddafi, his son Saif Al Islam Gaddafi and head of the Libyan military intelligence Abdullah Al Sanusi. 

Costs of a Security Council referral

The UNSC referrals of Libya and Sudan have been a mixed blessing for the ICC. In a perverse twist, these referrals may decrease the Court’s broader ability to pursue thorough investigations and assist victims. While the Security Council referrals significantly add to the ICC’s work load, the UNSC has refused to contribute to Court’s budget. The ICC is funded by State Parties, not the UN, and so non-State Parties (including the US, Russia, and China) on the Security Council give work to the Court without paying a dime for it. The result is a serious budget crunch at the Court, and some ICC staffers have told me that the areas most likely to be squeezed are the costly programs for victim participation and assistance.

This clearly must change. If the UNSC refers a situation to the ICC, then the UN should help pay for the expenses that result.

Some argue that the ICC now suffers from the reputation of being the Security Council’s lap-dog. Security Council members who perhaps deserve attention have not been investigated — but this is because they are non-Parties (US, Russia, China), or because (in the case of the UK at least) the ICC Prosecutor himself has decided not to pursue prosecutions. Such decisions have caused William Schabas, among others, to question the Prosecutor’s criteria for choosing situations. As mentioned above, the UNSC has not blocked the ICC from pursuing any cases, at least not explicitly.

But is it possible that the threshold for investigation and prosecution is lower for countries that are referred by the Security Council? Is it possible that the ICC devotes more resources for UNSC referrals than for other comparable cases? In other words, when the UNSC says ‘jump’, does the ICC — or at least the Prosecutor’s office — ask ‘how high?’

That’s an issue I intend to pursue in later blogs. (For a very good piece on the ICC and the UNSC see Justice in Conflict. For a longer academic take, see this article by McGill’s Frédéric Mégret.) Note that this discussion is somewhat different than the accusation that the ICC is anti-African, or even racist. Even without the Sudan and Libya referrals, the Court would struggle with that reputation, as its five non-UNSC referral situations are also African states.

Libya and Complementarity

But enough of international politics. What has the ICC done on the Libya file itself? As mentioned above, the Court issued arrest warrants in June for Gaddafi père and fils and intelligence head Al Sanusi. Gaddafi was killed under questionable circumstances, and Al Sanusi remains at large.

The situation of Saif al Islam Gaddafi is more complicated. Despite various rumours in the fall that Saif was trying to turn himself over to the ICC, he was captured by the new Libyan regime in November. The question then became: who gets to try him, and where?

The basic principle at work here is ‘complementarity.’ The ICC is supposed to be a court of last resort. If a state performs an acceptable and timely investigation (and, if necessary, trial) of incidents that come under the ICC’s jurisdiction, then the Court must to defer to that state’s legal processes. Of course, how complementarity is to be worked out in the Libya case is a difficult legal matter. (See Dapo Akende’s very helpful piece on the legal ins and outs.) But, to date, the Libyan government claims that it will try the young Gaddafi, and will not relinquish him to the ICC.

If the Libyan government does retain control of Saif Gaddafi’s trial, the ICC might still have an impact? The outgoing Prosecutor has long-argued that the Court should also pursue ‘positive complementarity,’ in which it offers resources or assistance to help states fulfill their obligation to mount acceptable trials of international crimes. It remains to be seen whether and how such assistance might be offered… or accepted. 

Peace not Justice, says Saunders

In brief — this is already a scandalously long blog post, a habit I hope to break — how does the ICC case refer to the longstanding “peace vs. justice” debate. This blog will engage that debate on many future occasions. For now I will simply look at the two arguments that Doug Saunders has made in the Globe and Mail. Though separated by almost a year, these columns both claim that the ICC referral backed Gaddafi into a corner, leaving him only two options: fight and win, or face trial. In doing so, it prolonged conflict.

Saunders is one of the few Canadian columnists I consistently read and appreciate, and he lays a lot of arguments on the table. That said, I think his case remains thin.

What are Saunders’ arguments? In his 2 April 2011 column Saunders claimed that there is a pattern of dictators or rebel groups staying on the offensive out of fear of prosecution. The examples he gives are Zimbabwe and Uganda. The Zimbabwe case is interesting, but I’ve never seen any evidence for it aside from a Stephanie Nolen article in which an anonymous insider told her that Mugabe’s generals were afraid of prosecutions, and convinced him that he had to hold onto power. 

Saunders’ second example is Uganda, which has perhaps been the epicentre of the peace vs. justice debate. Any fair observer of the Uganda situation would have to admit that the evidence on that one is mixed. Yes, the Lords Resistance Army made noises about fearing a peace deal due to the threat of ICC prosecutions. But there is also evidence that ICC attention helped: a) contribute to the decision to exclude the LRA from south Sudan, which weakened the rebel group, b) convinced some lower-ranked LRA to leave the militia, c) contributed to improvements in Uganda’s domestic capacity and will to prosecute serious human rights violations, and d) brought some international focus to crimes committed by the Ugandan government forces (though some argue just the opposite, that the ICC focus on the LRA has given the Ugandan government a pass). I have yet to see the silver bullet evidence that shows that Kony, the LRA leader, would have signed and stuck to a peace deal with the Ugandan government were it not for the ICC.

Saunders’ recent column again brings up the claim that ICC justice can block peace, citing the Zimbabwe case once more. But mostly he attacks the outgoing ICC Prosecutor. “Mr. Ocampo’s image as a white-suited outsider, tied to the superpowers, has poisoned the idea of international justice and made it seem like a crusade,” Saunders writes.

Moreno-Ocampo’s critics are legion, and as his term ends I look forward to serious and thoughtful considerations of his actions and his legacy. I don’t expect that from a general columnist like Saunders. But it would have been nice to see a little nuance, rather than unsupported generalizations — that international justice has no deterrent effect, or that the Prosecutor politicized an otherwise apolitical court — and repeated indictments of  Moreno-Ocampo’s white suit. “He screwed up all of international criminal justice and he dresses funny” is not Saunders’ best work.

The Saunders argument, taken to an extreme, is that we should always be prepared to overlook atrocities provided that peace can be achieved more quickly. But without consistent, enforceable responses to severe human rights violations, societies may simply pursue tit-for-tat cycles of revenge.

That may be what we are seeing in Libya today, with what appears to be widespread violations by militias associated with the new government. I need to stop writing and turn to my own research. But I vow to return to the trajectory of transitional justice in Libya in a future post.

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