ITCL Update: Chapter 4
As is being reported, the Prosecutor of the International Criminal Court has applied to Pre-Trial Chamber I for the issuance of arrest warrants for three people arising from the Libyan conflict. They are: Muammar Gadhafi, his son Saif al-Islam Gadhafi (who is a “Libyan government spokesman”) and Abdullah al-Sanusi, head of Libyan intelligence. The Prosecutor’s statement to the press yesterday can be found here.
Two thoughts. First, recall that the Libya situation came to the Court by way of a referral from the Security Council. Since Libya is not a party to the Rome Statute, this is the only way the case could be brought. It indicated a certain amount of unity on the SC on the view that it would be worthwhile bringing criminal process to bear against Gadhafi. However, the SC’s resolve on that point is open to question. It is also empowered to order the Court to suspend its process against the Libyans if it sees fit, and it may very well do that if it comes down to the nitty-gritty of a “safe exile for Gadhafi in exchange for peace” kind of deal.
So this might be a, shall we say, “p0liticized” use of the Court as a means to squeeze Gadhafi out rather than a chance to further the cause of international criminal justice. It’s not exactly the kind of “politicized” activity by the Court that some of its most ardent critics predicted from the beginning, but it may ultimately serve to undermine the Court’s legitimacy.
Second point is whether there will be African push-back. We have seen with the Al-Bashir warrant that, the ICC notwithstanding, some African states *which are ICC parties* have allowed Bashir to travel to their territories without arresting him, as they’re obliged to. That warrant also arises from a Security Council referral to the Court, in that case Sudan. The Council itself has not done anything about this impunity promotion as yet, preferring to let the Court itself shoulder the load of criticizing member states for non-compliance. If Gadhafi ends up enjoying the kind of relative freedom Bashir has, this too will not help the Court’s legitimacy or at least the overall view of its efficacy. On the other hand, Africa is complicated, so perhaps slow and steady is the only sensible policy.