A Pre-Trial Chamber of the International Criminal Court (the ICC) housed in The Hague issued arrest warrants on Monday, 27 June 2011, for Libyan leader, Muammar Gaddafi, his son, Saif Al-Islam Gaddafi, and chief of military intelligence, Abdullah Al-Senussi for crimes against humanity, including murder and persecution, allegedly committed in Libya between 15 February 2011 and around 28 February 2011. The chamber stated that there were “reasonable grounds to believe” that the three men committed crimes against civilians stemming from the uprising against Gaddafi in February.
This is only the second time the ICC has issued an arrest warrant against a sitting head of state. Previously, an arrest warrant was issued for Omar Al-Bashir, Leader of Sudan, for crimes against humanity, war crimes, and genocide. Two other International Tribunals have also prosecuted leaders of state – Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia and former Liberian President, Charles Taylor, at the Special Court for Sierra Leone.
The Libyan government was quick to denounce the issuance of the arrest warrants, calling it a “tool of the Western world to prosecute leaders in the third world.” Not surprising considering Libya is not a party to the Rome Statute and, therefore, does not recognize the power of the Court. So, how does the ICC exercise jurisdiction over Gaddafi? The Court gained jurisdiction over this situation when the United Nations Security Council, acting under its Chapter 7 Powers, referred the situation in Libya to the ICC under Security Council Resolution 1970.
The ICC, however, does not have the power to make arrests. This leaves the burden upon either, the rebels fighting Gaddafi and his regime, a newly installed Libyan government if Gaddafi is finally overthrown, or the government of any country to which Gaddafi flees. Security Council Resolution 1970 mandates that Libya and all state parties to the ICC comply with the arrest warrant, while all other members of the United Nations, not party to the ICC, are encouraged to comply.
The issuance of these warrants brings two immediate questions to mind. First – Is this the best avenue for peace in Libya? Taking away options for Gaddafi to flee to a friendly nation could only force him to fight to the bitter end. Second – Why investigate Gaddafi and the situation in Libya? There are countries the world over who cry for help from the ICC, including Syria, Egypt, and Burma, to name just a few.
At a press conference yesterday, ICC Prosecutor Luis Moreno-Ocampo, repeated the same answer for both questions. It was not his decision, he stated, it was that of the Security Council. The implication is that the ICC is only investigating the situation in Libya because the Security Council gave it jurisdiction to do so. Any further questions regarding whether this is the best avenue for peace or if the ICC should be investigating other situations of human rights violations should be directed toward the UN, or more specifically, the Security Council.
This does not exactly quell allegations that the ICC is all bark and no bite. Supposedly independent from the UN, the ICC is meant to prosecute crimes against humanity, genocide, and war crimes. Although, it seems they only jump to action when the Security Council demands it.
Regardless of the politics behind the ICC’s decision, the issuance of the arrest warrants was probably a good decision. Human Rights Watch points to the record from other conflicts showing that arrest warrants for senior leaders can actually strengthen peace efforts by stigmatizing those who stand in the way of conflict resolution. Citing examples from the International Criminal Tribunal for the former Yugoslavia, where the indictments for Radovan Karadzic and Ratko Mladic kept them sidelined during the Dayton peace talks and helped lead to end the Bosnian war.
Ocampo may have said it best, “Gaddafi’s inner circle…can be part of the problem and be prosecuted, or they can be part of the solution [and] work together with the other Libyans and stop the crimes.”
