The United Nations Security Council has referred the ongoing situation in Libya to the prosecutor of the International Criminal Court, (ICC) for investigation into crimes against humanity for the attacks against the civilian population. This is only the second referral to the ICC from the Security Council, the first was the genocide in Darfur, which led to the first international criminal indictment for a sitting head of state, the indictment against Omar Al-Bashir, the President of Sudan, Bashir has now been indicted for war crimes, crimes against humanity, and genocide.
The Security Council decision though was not without its critics. Part of the referral specifically exempts foreign mercenaries from countries which are not signatories to the ICC treaty from being prosecuted. Since many of the reported attacks were carried out by foreign mercenaries from other African countries, it may effectively grant immunity to those players. Individual soldier may not likely be prosecuted by the ICC anyway, it is the political and military leadership, not line soldiers, who are the intended targets of the court.
Below are the key paragraphs of the referral:
The Security Council,
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;
At least one commentator has pointed out that, in the Security Council, non members of the ICC, UN Security Council permanent members China and the U.S. have been willing to leave the cost of the ICC prosecutions to the 118 state parties of the ICC. The open questions here include, when will the prosecutor act? Who might be indicted other than Muammar Qadafi? Will Qadafi or any other member of the Libyan government ever actually appear before the court? What credible information will the court be able to produce about the events in Libya, given the lack of access to the country?
It seems unlikely the referral will change the course of current events in Libya, but will it have the intended effect of deterring other crackdowns in the future, or assist in bringing this one to an end? Will there be any public response to the excepting of foreigners? There are a lot of questions that are raised by this referral, and only time can give the answers.
As one commentator pointed out, this referral is a test of the ICC and its ability to prosecute crimes against humanity. He argues the prosecutor will need to respond quickly to be credible, though the prosecution would also need time to investigate and build its case.