The International Criminal Court: Libya Investigation Status

On May 4th the ICC Prosecutor reported to the U.N. Security Council regarding the status of his office’s investigation of “the situation in Libya since February 15, 2011.”[1] (As noted in a prior post, the ICC is investigating the Libya situation by virtue of the February 26, 2011, U.N. Security Council’s unanimous Resolution referring the situation in Libya to the ICC.[2])

The Prosecutor in his May 4th report said that soon he would be submitting his first application to the Court’s Pre-Trial Chamber for the issuance of arrest warrants in this investigation. The first such application will be against three individuals who appear to bear the greatest criminal responsibility for crimes against humanity in Libya since February 15th. These would be “those who ordered, incited, financed, or otherwise planned the commission of the alleged crimes.” He did not give the names of the three, but it is expected that one will be Colonel Muammar al-Gaddafi.

According to the Prosecutor, the evidence provided a reasonable basis to believe that the regime’s security forces have been systematically shooting and killing at least 500 to 700 peaceful protesters and injuring many more, using the same modus operandi in multiple locations. In addition, the security forces are engaged in persecution by systematic arrests, torture, killings and enforced disappearances of civilians who have participated in demonstrations, or who are considered disloyal to the regime or who have talked to international media, activists or journalists.

Such conduct, if established at trial, constitutes crimes against humanity under Article 7 of the Court’s Rome Statute: “widespread or systematic attack directed against any civilian population, with [the accused’s] knowledge of the attack [involving] murder; . . . torture; . . . persecution against any identifiable group . . . on political . . . grounds . . .; [or] enforced disappearance of persons.”

The Prosecutor reported that such charges would be admissible in the ICC because there was no national investigation or prosecution of individuals for such conduct and there were no “interests of justice” that called for the Prosecutor not to investigate or prosecute individuals for these crimes.

The Prosecutor also noted that his office was still investigating other crimes against humanity as well as war crimes in Libya and implied that is office might be seeking other arrest warrants.

All 15 members of the Security Council at the May 4th meeting complimented the Prosecutor for his immediate, professional and thorough investigation of the Libyan situation and stressed the importance of further investigation and prosecutions. Interestingly the Indian representative said the Prosecutor should not be influenced by “non-judicial considerations” and should investigate the conduct of both sides to the conflict. More ominously, the South African representative said that the Prosecutor should investigate any actions by the NATO coalition that “fall outside the scope of [the Security Council’s resolutions on Libya]” and that violate the provisions of the Rome Statute.

By referring the Libyan situation to the Court, the Security Council clearly saw the ICC’s investigation and prosecution as one of several means to try to stop the horrible repression in Libya in addition to the Security Council’s establishing an arms embargo, travel ban, asset freeze and military imposition of a “no-fly zone” and authorizing “all necessary measures” to protect civilians.

On the other hand, some see ICC investigations and prosecutions as making it more difficult to end what has become a Libyan civil war in that they provide an additional motivation for Gaddafi and others to fight to the bitter end.[3]  At the May 4th Security Council meeting, the Chinese representative said the ICC needed to remember that “peaceful dialogue and negotiations are the best way forward towards a political solution to the crisis,” and the Nigerian representative made similar comments, saying that the prosecution must be “carefully calibrated to support the ongoing political efforts to find a peaceful solution.”

Stay tuned for further developments in Libya and at the ICC in The Hague.