March 28, 2011 / 1:57 PM / 7 years ago

Analysis: Probing Libyan killings, ICC support at turning point

AMSTERDAM (Reuters) - The upheaval in the Arab world and the U.N. Security Council’s referral of Libya could mark a pivotal shift in support for the International Criminal Court, reinforcing its “real time” role in delivering justice.

The world’s first permanent war crimes court has battled a lack of state support, with global powers such as the United States, Russia and China refusing to sign up, while some African states have been reluctant to carry out arrests.

Elsewhere, Arab and other Muslim states have been suspicious of the court, concerned that it was a tool of western justice.

But all this is starting to change.

Amnesty International called the unanimous Security Council referral of Libya’s violent crackdown on pro-democracy protests to the ICC an “historic precedent” as it was the first time the United States and China voted to send a case to the court.

ICC prosecutor Luis Moreno-Ocampo is now investigating the Libya case even as western powers enforce an arms embargo and no-fly zone over the North African state, co-operating also with the Arab League in his probe.

As pro-democracy movements reshape the Arab and North African political scene, Richard Dicker at Human Rights Watch stresses the reach of the court is dramatically expanding.

“We’re really seeing quite a significant increase to new regions and new countries where accountability through the ICC had not really been a factor,” Dicker said.

States can become members of the court by ratifying the Rome Statute that set up the court, binding them to its jurisdiction.

Currently Jordan, an Arab League member, is the only Middle East or North Africa state signed up. Only two other Arab League states, the Comoros Islands and Djibouti, have become members.

In Tunisia, where protesters toppled the rule of president Zine al-Abidine Ben Ali in January, the nation’s new government has indicated it will now join the ICC.

There is also talk that Egypt, where president Hosni Mubarak stepped down in February, could follow suit soon.

“This is a signal that the countries in which there is a Muslim majority of the population are ready to accept the ICC,” said David Donat Cattin at Parliamentarians for Global Action, an NGO that supports the work of the court.

In the Asia region, Malaysia and the Philippines might also ratify the 1998 Rome statute: two milestones highly anticipated by human rights groups.


The ICC has a mandate to investigate genocide, crimes against humanity and war crimes, but lacks its own police force and has struggled to have arrest warrants enforced.

Sudanese President Omar Hassan al-Bashir, for example, is still at large after being charged with genocide in Darfur following Security Council referral of the case. Some African states have simply refused to arrest him.

But the court appears to be pursuing a more unified approach to the Libya probe, with prosecutor Moreno-Ocampo meeting with Egyptian and Arab League officials last week and liaising with the African Union.

Stephen Rapp, the U.S. ambassador-at-large for war crimes, told Reuters the speed of the U.N. referral on Libya was to “send a very clear message that the world is watching” and that this had deterred some Gaddafi loyalists from committing crimes.

He predicts strong support for the enforcement of arrest warrants, which Moreno-Ocampo expects to request by the end of May and which could target Muammar Gadaffi, his sons and key aides.

“Do I see that there will come a day when individuals responsible for this kind of conduct are in the ICC? Yes, it is not a question of if, it’s a question of when,” Rapp said.

Although the Security Council can suspend the court’s proceedings for up to 12 months at a time in the interests of peace, legal observers suggest this is unlikely in the case of Libya. Also, the council cannot permanently halt ICC cases.

Greater support for the court will not change the reality that achieving “real time” justice is difficult, however.

Confronted by ethnic cleansing in Kosovo in 1999, the International Criminal Tribunal for the former Yugoslavia indicted Serbian President Slobodan Milosevic in May of that year while a NATO bombing campaign was in full swing.

Milosevic was not arrested until April 2001.

“It’s not always possible to do justice in real time,” said Dicker at Human Rights Watch. “The wheels of justice do grind much more slowly than the fast pace developments of political, military or diplomatic action.”

“Even with the shortcomings though, new states are looking at the ICC as a source of justice and that is a significant and hopeful development,” Dicker said.

Reporting by Aaron Gray-Block; Editing by Sonya Hepinstall

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