The ICC in Libya: Assuming its stake in the spoils of the uprising

The capture of Saif Al-Islam Gadaffi by Libyan rebel forces was a short lived victory.  Shortly after his capture, he was able to escape custody and  rejoin the resistance to the rebel advance. 

But even this fleeting victory for the rebels has revealed the extent to which western legal institutions will hold sway in Libya if Gadaffi is ever defeated.  No sooner had he been captured, that the International Criminal Court (ICC) prosecutor had contacted the rebels to ensure Saif Al-Islam was readily passed into custody at The Hague to await trial before the International Criminal Court.   The rebels unquestioningly agreed to hand him over. 


In one sense,  this is remarkable.  Libya has never recognised the authority of the ICC before today.  In fact,  the ICC should not even have jurisdiction over Libya as its government has never signed up to the Court's founding statute,  the Statute of Rome. 

Yet in another sense it is understandable.   The rebels have become so dependent on western intervention in the course of the uprising that they lack the political independence to resist the ICC's calls to intervene.  Further,  ICC has recently used International Law to expand its jurisdiction to countries whose governments have never previously acknowledged its authority. 

The Statute of Rome grants extensive powers to the ICC prosecutor to investigate whether war crimes, genocide or crimes against humanity are being committed by a state.  If the prosecutor finds that they are, the Court can issue a warrant to arrest the individuals responsible in order to try them under International Law.  The ICC prosecutor took this step in relation to the Gadaffis earlier this year.

The prosecutor can start an investigation either at the request the state into which they are to investigate, of their own volition, or under the terms of a UN Resolution. 

Libya is the second of two referrals under the terms of a UN Resolution in the Statute’s history.  The first was in response to the civil war in Darfur, which resulted in a warrant being issued for the Sudanese head of state, Omar Al-Bashir, to be arrested for war crimes and crimes against humanity. 

In the case of both Libya and Sudan two doctrines of International Law are relevant.  The first is that no acting head of state may be prosecuted under the criminal law of another state in a manner which restricts his activity as that head of state.  This is the doctrine of ‘sovereign immunity’.  It is designed as a safeguard of national sovereignty, because it recognises that leaders of countries should be accountable to their electorate rather than foreign legal institutions.  

Secondly, a statute cannot create any obligation nor bestow any rights on a state without that state’s consent in the form of that state becoming a party to that statute.  This means, again only in theory, that states cannot be forced to do things under International Law if they have not freely become party to legislation.

The Statute of Rome strips sovereign immunity from heads of state for the purposes of trial before the ICC.  However, Libya is not a party to the Statute of Rome.  As such, the statute cannot, in and of itself, remove Gadaffi’s immunity from prosecution nor compel the rebels to hand him over.  

The ICC faced the same problem with Al-Bashir in Sudan, as Sudan was also a non-party to the Statute.  But the ICC found a solution. 

Under the UN Charter, Security Council resolutions are binding on all UN member states.  The Resolution requesting the investigation into Sudan obliged all UN member states to cooperate in the investigation into the conflict there.  The ICC found that Sudan was under an obligation to assist the investigation into its own domestic affairs by virtue of its UN membership.  

The result was that a warrant could be issued for the arrest of Omar Al-Bashir even though Sudan was not party to the Statute of Rome.   The same reasoning is likely to be applied to Resolution 1970 in the Libyan case.  The  ICC will not be prevented from prosecuting Gadaffi simply because Libya is not a party to the Statute under which he stands to be prosecuted.

The examples of Libya and Sudan show how the ICC is expanding its jurisdiction, or perhaps more accurately ignoring its jurisdictional limits, through supporting their investigations with UN Resolutions.

This is worrying.  As the Libyan example shows, ICC investigations have a disastrous effect of domestic conflicts.  The Libyan investigation meant that all the nations bordering Libya were compelled, as UN member states, to cooperate with the ICC and arrest Gadaffi if he crossed their borders.  This meant that Gadaffi was left with nowhere to run.  His only option, other than to stand and fight, was to seek refuge in a non-UN member state such as Kosovo or Taiwan; neither of which presented a realistic safe haven.  For this reason, Resolution 1970 contributed to the factors that forced Gadaffi to fight to the end, by cutting off any lines of retreat.

But if Gadaffi is ever captured, the example of Sudan provides an option to the rebels: they could  ignore the warrant completely.  The ICC is dependent on its relationship with national and transnational police forces to execute its arrest warrants.  As such,  many of its warrants,  including that in the name of Omar Al-Bashir, remain unexecuted.  It has no inherent powers of arrest. Libya would be legally obliged to honour the warrant as it is a UN member state.  But what would the consequences of ignoring that obligation be?

The situation would be unprecedented.  Whilst the Sudanese government continue to refuse to acknowledge the authority of the ICC, Al-Bashir remains in power.  In Libya, members of the Gadaffis who are being sought by the Court may soon be captured and ready to hand over.

Refusing to pass the Gadaffis to the ICC would be a powerful statement of self-determination on behalf of the rebels.  A trial on Libyan soil could mark a departure from the intervention that  sustained the Gadaffi regime for so long.  It would demonstrate that the rebels were able to assert Libyan identity against the meddling influences of the West.

But to imagine such an assertion to be possible would be to misrepresent the nature of uprising.  The rebels have become dependent on western intervention.  Without NATO airstrikes, it is hard to see how the rebels would have had the domestic support they needed to succeed.  Because of this dependence, even though Gadaffi may soon fall, the rebel leadership has yet to emerge.  The movement remains shambolic and disorganised.   Notwithstanding their immense bravery, they are yet to present any strong alternative vision of Libyan society for Libyan people to rally around.  Until such a vision is formulated, they will remain dependant on the institutions of the west to artificially bolster their credibility as national leaders.

A trial of the Gadaffis at the ICC will be one symptom of this dependence on western institutions.  The risk is that such dependence allows for greater interference by the west in the running of Libya after Gadaffi, as suggested by the immediate and assuming interference of the ICC.  

We should hope that the rebels move quickly to distance themselves from the western legal frameworks and institutions that supported them so far.  Otherwise the initial driving force of the uprising, the belief in a free and self-determining Libya, may yet come to nothing.