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| Picture Credit: belfasttelegraph.co.uk |
On February 26, 2011, the Security Council adopted Resolution 1970 referring the situation in Libya to the ICC. This is only the second Security Council referral, and the first to be adopted unanimously. Libya is not a party to the Rome Statute, however Security Council Resolution 1970 gives the ICC jurisdiction over crimes committed in Libya after February 15, 2011 – the first day of protests.
ICC chief Prosecutor, Luis Moreno Ocampo, opened an official investigation on 3 March 2011 and on May 4 announced that there is widespread evidence of crimes against humanity and war crimes. The Prosecutor has issued arrest warrants for Libya’s former leader Muammar Gaddafi, his son Saif al-Islam, and intelligence chief Abdullah Senussi.
The articles and documents below track the developments of the ongoing ICC investigations in Libya.
UN Documents
Resolution 1970 was adopted by the Security Council on February 26 2011. Among other things, the resolution referred the situation in Libya to the International Criminal Court.
Articles
Where to try Gaddafi’s former spy chief for the part he played during the Libyan uprising is the next big question for the ICC. Abdullah al-Senussi, currently held in prison in Tripoli without access to legal counsel, was for decades the Libyan leader’s “feared right-hand man and security supremo.” There is debate over whether the ICC’s complementarity principle is applicable to the case, since the Libyan justice system is presently weak (without even a justice minister), and could therefore amount to the threshold of “unable genuinely to carry out the investigation or prosecution.” The ICC faces tough decisions on striking a balance between respecting a home-grown judicial solution while guranteeing a fair trial for indicted war criminals. (Guardian)
The discussion of where Saif al-Islam Gaddafi should be tried for the part he played during the Libyan uprising continues. The potentially unfair trial he will receive if tried by the very people who toppled his father is an important consideration for the ICC. One of the founding principles of the ICC is that it is intended to be a court of last resort. Under the complementarity principle, a case is only admissible by the court if a state with jurisdiction over the case is unwilling or unable genuinely to carry out the investigation or prosecution. A decision to try Gaddafi will have enormous consequences in terms of who will sign up to the Rome Statute in the future, not forgetting the crucial precedent it will set for future cases tried by the international court. (Associated Press)
The International Criminal Court’s (ICC) official mandate is to take on cases in which national courts are unwilling or unable to try the world’s most offensive war criminals. Under this jurisdiction, the ICC indicted Saif al-Islam Gadhafi for his alleged role in violently suppressing the opposition to his father’s regime in Libya. But the Libyan government insists that it is able try Saif al-Islam Gadhafi at home, and has asked the International Criminal Court (ICC) to drop its case. Libya is working to adopt new legislation that will incorporate crimes against humanity, war crimes and genocide into Libyan law. (Maclean's)
The International Criminal Court (ICC) issued a warrant for Saif al-Islam Gaddafi, for his involvement in killing protesters during a revolt in Libya. A UN Security Council Resolution obliges Libya to cooperate with the court even though Libya did not sign the Rome Statute to ratify the ICC. Libyan authorities, however, refuse to hand Gaddafi over. They hope to try him in his own country under Libyan judges. The new Libyan justice system, authorities argue, is capable of conducting fair trials in complex cases. (Reuters)
Although the fighting has ceased in Libya, a different disagreement between the interim government in Tripoli and the International Criminal Court (ICC) in The Hague needs to be settled. The question on how international law should deal with the death of Gadaffi and his clan is a complicated task under international law. Gadaffi himself will continue to live on in legal terms for some time, since the ICC is still lacking concrete evidence of his death. Concerning his son, Saif al-Islam, the new leaders of Libya intend to bring him before a court in Libya rather than allowing him to stand trial before the ICC. (Spiegel)
What Should Justice for Gaddafi Look Like? (September 2, 2011)
After the fall of Tripoli several jurisdictions are laying claim on Gaddafi. The Obama administration has stated that the Libyans should be able to try Gaddafi themselves as long this would meet the highest standards of international justice. However, Libya currently has no functioning legal system. The International Criminal Court (ICC) would offer a more stable legal setting, but an ICC trial involves years of investigations and depositions. Eventually, where Gaddafi will face justice will probably be determined by political factors rather than legal factors. (Reuters)
For the second time in history, the ICC has indicted a sitting head of state, causing many critics to question whether the pursuit to hold leaders accountable for their wartime actions will delay or potentially obstruct peace processes. This Council on Foreign Relations (CFR) article asserts that this “peace or justice” dilemma oversimplifies the international justice process. While international warrants, in this case against Colonel Gaddafi, may not have the same immediate impact as warrants issued at a national level, CFR states that these warrants “delegitimizes” Gaddafi’s rule and limit his international influence.
Only a month after starting its investigations, the ICC has issued a warrant for the arrest of Colonel Muammar Gaddafi, Seif al-Islam al-Gaddafi, and Abdullah al-Senussi for crimes against humanity. Though Libya is not party to the Rome Statute, the ICC has a right to try anyone who has committed war crimes, crimes against humanity and genocide in Libya due to Resolution 1970 of the UN Security Council. Although the ICC has jurisdiction, it still must rely on the Libyan government or citizens of Libya to make the actual arrest.
On June 9, 2011, ICC Chief Prosecutor Luis Moreno-Ocampo announced that he is likely to add mass rape to the war crimes charges against Muammar Gaddafi. While rape and other gender-based crimes are clearly defined in the Rome Statute, this could be the first time that they are be featured prominently in a war crimes and crimes against humanity charge. This Guardian article urges the members of NGO community, particularly those who were instrumental in the creation of the ICC and the incorporation of gender-based crimes to the Rome Statue, to ensure that the ICC follows through with these investigations. (Guardian)
The Office of the Prosecutor for the International Criminal Court has filed arrest warrants for Libya’s leader Muammar Gaddafi, his son Saif al-Islam, and intelligence chief Abdullah Senussi. The ICC has moved quickly, submitting the arrest warrants just over 2 months after the Security Council referral. The speed with which the Security Council and the ICC have acted in Libya is at odds with the lack of action in other regions – including, Syria, where human rights violations are perhaps even more widespread, but where the interests of Security Council permanent members are not at stake in the same way. (Los Angeles Times - Babylon & Beyond)
In February 2011, the Security Council referred the situation in Libya to the ICC. Investigations have now been completed and the chief prosecutor, Luis Moreno-Ocampo, has announced that there is widespread evidence of crimes against humanity and war crimes. Arrest warrants are expected to be submitted to the pre-trial chamber in late May. The ICC itself does not carry out arrests, and relies on states to do so. It is unlikely the Libyan government will cooperate, therefore, it will be essential that foreign states prepare to make arrests. If not, the Security Council’s actions in referring the case to the ICC will be significantly undermined. (Guardian)
The Security Council has referred the escalating crisis in Libya to the International Criminal Court. The Court will investigate whether military attacks on civilians constituted crimes against humanity. This is only the second Security Council referral to the ICC; the first was the case of Sudanese President Omar Hassan al-Bashir in 2005. This article argues that an ICC trial is important not only to end Gadhafi's impunity, but also as a historical record of his crimes. It could help to deter potential perpetrators even, perhaps, those in powerful states. The referral tends to strengthen the impression that the court is only concerned with Africa. (Globe and Mail)
