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.
By Elizabeth Whitman
The International Criminal Court (ICC) issued warrants Monday for the arrest of Libyan leader Colonel Muammar Gaddafi, his son Seif al-Islam al-Gaddafi, and the Libyan chief of intelligence, Abdullah al-Senussi, for crimes against humanity.
Specifically, the ICC cited evidence of murder and persecution from Feb. 15 to Feb. 28, during initial anti-government protests and demonstrations.
The United Nations Security Council passed a resolution in late February that referred the situation in Libya to the prosecutor of the ICC and requested that Libyan authorities "shall cooperate fully with" the ICC's activities regarding Libya.
On May 16, two weeks after opening an investigation into the situation in Libya, ICC Prosecutor Luis Moreno-Ocampo requested that the arrest warrants be issued.
Although Libya is not one of the 116 countries to recognise the court (Tunisia, the most recent, joined two days ago), the ICC does have jurisdiction over war crimes, crimes against humanity, and genocide in that country because of the Security Council's February referral.
What the ICC lacks, however, is the capability to arrest those it seeks. That responsibility lies with countries and their governments.
New York-based Human Rights Watch (HRW) hailed the warrants, calling them a signal that "the law can reach even those long thought to be immune to accountability."
Arrests are next major step
Many experts recognise that the arrests themselves constitute potential obstacles to bringing Gaddafi and the two others to justice, although they hesitate to assume the absolute worst, where arrests take years, even over a decade, to take place.
Still, the ICC's reliance upon individual countries to carry out arrests inherently presents challenges, particularly when state authorities themselves could be complicit in the very crimes for which others are being arrested.
In that paradox, said Richard Dicker, director of the International Justice programme at HRW, "lies the weakness" of many international tribunals and courts.
In an interview with IPS, Dicker said, "The road between warrant and arrest can be a lengthy one," and he called the apprehension component of the ICC a "weak link".
No one can predict the speed or time frame in which Gaddafi, Seif Gaddafi, and al-Senussi could be arrested, and history provides few reliable indicators.
Indicted by the International Tribunal for the former Yugoslavia in 1995 for war crimes including genocide, Ratko Mladic was arrested just last month.
Yet a warrant for Charles Taylor, former leader of Liberia, was issued in June 2003, and in March 2006 was he arrested - three years that, compared to Mladic, seem relatively short.
Albeit often slow, the international justice system has been "extremely effective" in bringing to justice individuals responsible for mass crimes, William Pace, convener of the Coalition for the International Criminal Court (CICC), was quick to point out in an interview with IPS.
Still, he acknowledged that at times the arrests sought for such crimes could take a long time. Ultimately, the results depend on the cooperation of Libyan authorities and whether they can arrest and surrender Gaddafi to the ICC.
Security Council meets
Meanwhile, in the U.N. Security Council Monday, 100 days after NATO operations began in Libya, Undersecretary General for Political Affairs B. Lynn Pascoe briefed members on what he called a "fragile situation in the region".
NATO maintained its air strikes in the Gaddafi stronghold of Tripoli, he said, and about 50 miles from there, heavy fighting continued.
On the humanitarian front, he said that as of Jun. 23, more than 1.1 million people had fled Libya, but that since May 29, U.N. humanitarian teams had been able to access some areas to provide aid.
In the same meeting, South Africa's representative conveyed the demands of the African Union, including "immediate pause in fighting and NATO-led bombings in order to provide a respite to the civilian population."
NATO has come under criticism for civilian casualties resulting from its air strikes. Last week it admitted that one of its aerial attacks had killed nine civilians.
The South African representative stressed, "A political rather than a military solution is the only way" to achieve peace in Libya.
A spokesperson for the secretary-general of the U.N. had no comment on the issuance of the warrants, citing the fact that the ICC is a body independent of the U.N.
Future steps
Moreno-Ocampo said he might open a second investigation into crimes committed during the armed conflict between the government and NATO- backed rebels, as the current investigation pertains only to the weeks before armed conflict began and escalated.
In addition to applying to a limited time period, the existing arrest warrants are only for crimes against humanity, for which reasonable evidence exists, not war crimes.
Human Rights Watch has said that it would urge the prosecutor to investigate possible crimes committed by all actors in the armed conflict, including NATO and rebel forces.
Despite prevailing uncertainties, Pace remained optimistic, calling the impact of the warrants "hopeful" and noting that actions regarding Libya taken by "regional organisations, the Security Council, the Arab regional governments and NATO military efforts have almost certainly prevented massive additional crimes against humanity."
In the end, he suggested, their efforts "could result in the removal of another repressive dictatorship".
