By Yves Poirmeur
Translation: Davina Durgana
Passage au crible n°40
The United Nations Security Council decided in Resolution 1970 on February 26th, 2011 to give jurisdiction to the ICC (International Criminal Court) on the situation in Libya. In fact, the regime of Colonel Ghadaffi is suspected of committing crimes against humanity since February 15th, 2011 in repressing the insurrection which had broken out in the East of the country and in directing systematic and generalized attacks against the civilian population. The Prosecutor of the ICC, Luis Moreno-Ocampo, opened an investigation from March 3rd, 2011. Then he announced on Friday, May 13th, 2011 that he would ask the judges to deliver international arrest warrants against “three people that seem to carry the most responsibility“. Additionally, recall that as Resolution 1970 has not dissuaded the Libyan government from pursuing its military repression, the Security Council authorized an aerial military intervention. (Resolution 1973, 2011).
Created in 1998 by the Rome Convention, the ICC represents the first permanent and independent international criminal jurisdiction charged with judging the perpetrators of the most serious international crimes, which the State Parties have not prosecuted, in application of their universal jurisdiction. As 78 of the Member-States of the UN have not ratified the Statute and can provide asylum to these criminals, the option offered to the Security Council to use this jurisdiction, as a measure which can be taken against a situation that threatens international peace and security (Chapter 7 of the United Nations Charter) is a complementary means of efficiently fighting against impunity. This procedure was already used for the first time for the crimes committed in Darfur (Resolution 1593 on April 1st, 2005). In utilizing this again, the Security Council has thus confirmed the legitimacy of the ICC to address situations where States refuse its competence and denounce the ICC as a Western instrument of Imperialism. In quickly deciding to refer this situation, the Security Council has renewed interest in this mechanism for preventative usage as well.
1. The penalization and judicialization of international conflicts. The authority of the ICC is not imposed only on States that have accepted its jurisdiction by ratifying the Rome Statute. In fact, as they are by nature rare and precise, the resolutions of the Security Council extend to the situations that they have referred to the ICC the global authority that it retains. In quickly deferring a situation as was done with Libya, the Security Council consequently does not only support the legitimacy of the ICC as a global criminal judge, charged with surveillance over the obligation of States to protect their populations. It additionally replaces conflict on the domestic criminal domain, and in doing so, increases the repertoire of measures with which they could treat the conflict.
2. Economy of international sanctions extended to criminal threats. The referral of the Libyan situation to the ICC confirms the idea that the threat of international criminal repression could play an important role in the prevention of international crimes in dissuading the fulfillment of an act. The use of the ICC enriches the arsenal of measures intended to prevent a conflict and to reestablish the peace. It participates in a new economy of international threats placed on political leaders. This rests upon: 1) highlighting the gravity of the criminal sanctions incurred; 2) the certainty of prosecutions that will be engaged against perpetrators of crimes; 3) the existence of a competent jurisdiction in which to judge these crimes. Nonetheless, if this doctrine of employing this threat is clearly established, its dissuasive power remains however very limited.
Unanimously adopted among the six members of the Security Council – of which three permanent members (United States, Russia, China) – have not ratified the Rome Statute, Resolution 1970 consolidated more legitimacy as the ICC received support from the Arab League and the African Court of Human Rights. This approach is invoked by the Security Council immediately as a State can no longer assure the responsibility of protecting its population from genocide, war crimes, and crimes against humanity (World Summit 2005, (60/1)) and is fully recognized. Ranging symbolically from the side of people against their tyrants and presented as capable of retaining them in their criminal institutions, the ICC is inserted in the coherent institutional network of the protection of human rights and the fight against impunity which includes notably NGOs which defend human rights, the Committee of Human Rights, and regional organizations. The ICC seems to be a crucial component of regional organizations and benefits in this respect from its sympathetic capital. Globally, the context of Arab revolutions has proven to be helpful in diffusing the image of the ICC as a protector of the people. It additionally permits the disqualification of the idea of the ICC as simply a Western instrument of Imperialism. As interventions are reclaimed by insurgents who denounce the crimes of the dictatorship, which are then condemned and defended with great difficulty by the leaders of authoritarian regimes who have attempted to maintain their power with limited democratic overtures (Morocco, Algeria).
If the open investigation is directly aimed at Libyan authorities and if the Prosecutor of the ICC chooses to act based on the fact that it also covers the crimes eventually committed by the insurgents, Resolution 1970 has strictly defined the object of its jurisdiction – crimes against humanity committed since February 14th, 2011 – and excludes the nationals of States which have not ratified the Statute of the Court. This arrangement shows that the fight against impunity always resides directly tied to the interests of States. While the legitimacy of the ICC will be without a doubt better assured without such exceptions, which incurs criticism of selectivity. However without this, the situation could not have been deferred and the decided American participation in the aerial military intervention would have then been compromised.
As the arsenal of classic measures does not allow the use of force (United Nations Charter, Article 21 and Article 41) applicable to persons – travel restrictions, freezing of assets – immediately affect their targets, for international justice to act as a threat and to have a dissuasive role, it must confer a high probability of arrest, prosecution and conviction of the leaders of international crimes. Additionally, even if the credibility of the international criminal court could commend strong convictions since the creation of the ICTY and current open investigations, they remain too rare to enter the criminal risk into the calculations of dictators as hardened as Mr. Ghaddafi, of military leaders and special police in the repression of armed factions, all ready to maintain to ascend to power. The pursuit of the repression has, in fact, confirmed that the guide and the majority of Libyan leaders are inaccessible to this argument. Only systematic references intervening from the first warning to the provision of sufficient financial means (Resolution 1970 leaves the financing to fall to the burden of the State-Parties to the ICC Statute) to lead investigations, converting this risk into quasi-certainty that could perhaps render the criminal activities of less determined leaders susceptible. The slowness and restraint with which the Security Council, for reasons and specific interests for the region concerned, dealt with the Libyan situation and lateness in sending it to the ICC (if it ends up completing its investigation) contrasts with its promptness – only 10 days after the beginning of the conflict we saw the first information retrieved by the Commission on Human Rights – to defer the Libyan situation. Such a discrepancy confirms that it will take a lot of time for the certainty of punishment to be able to lead to preventative virtues for the jurisdiction of the ICC. On the other side, it seems likely that international stigmatization of main regime leaders such as international criminals in power will encourage their separation, retreat, and the rallying of insurgences of less engaged political and military leaders that will remain loyal to the regime. However, beyond this uncertain preventative effect, such a jurisdiction presents other repressive merits. Thus, allowing the ICC to open an investigation and to immediately collect evidence that would be more difficult to collect later and – if the elements are all met – to rapidly deliver international arrest warrants before the conflict has even ended. The emission of such orders has rendered impossible – or at least made extremely difficult – all political arrangements, which are designed to ensure impunity after finding themselves in a safe haven.
On the conflict: Marzouki Moncef, Dictateurs en sursis. Une voie démocratique pour le monde arabe (entretien avec Vincent Geiser), Paris, Éd. de l’atelier, 2011.
Security Council: Résolutions 1970 (2011) et 1973 (2011) on the Libyan situation.