Enquiry into Libyan War will increase legitimacy of International Criminal Court

14 November 2011

Enquiry into Libyan War will increase legitimacy of International Criminal Court

The forthcoming enquiry into the conduct of the various parties involved in the Libyan war will increase the legitimacy of the International Criminal Court, argues Harry van Bommel.

Harry van Bommel is a Member of Parliament for the SP and a member of Parliamentarians for Global Action, an organisation which promotes the working of the International Criminal Court.

Harry van BommelOn 3rd November the Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo informed the UN Security Council that he intends to investigate the conduct of all of those involved in the Libyan war. That is good news. Not only Gaddafi’s actions but also those of the National Transitional Council and of NATO will be thoroughly scrutinised.

The International Criminal Court (ICC) is based on the Statute of Rome, which came into force on 1st July 2002. Since then 119 countries have become parties to the treaty, including all EU member states. Genocide, crimes against humanity and war crimes fall under the ICC’s jurisdiction. States which are parties to the treaty can refer cases to the Court themselves, as can the Security Council, but the Prosecutor can instigate an enquiry on his own initiative where what are involved are deeds perpetrated on the territory of a treaty state or by someone holding the nationality of a treaty state.

The war in Libya came to the ICC’s attention via UN Resolution 1970. On the basis of an investigation an arrest warrant was issued for Gaddafi, his son Saif Al-Islam and head of security Abdullah Al-Senussi, in respect of murder and crimes against humanity. Gaddafi has in the meantime died, but the other two suspects are in discussion with the ICC over giving themselves up voluntarily. Both suspects are seeking to avoid being sent back to Libya following judgment by the Court. Article 107 of the Statute of Rome guarantees those convicted the chance to be sent to a country other than the one in which their crimes were committed. Moreno-Ocampo told the Security Council in person that it was a good sign that suspects had confidence in the ICC, including when it came to their own rights as suspects. It would be of huge significance if Saif Al-Islam and Abdullah Al-Senussi were to give themselves up to the ICC and receive a fair trial; significant in the first place for Libya, but certainly also for the ICC and against the background of a UN which proactively referred the situation in Libya to the Court.

The ICC will also investigate the actions of the National Transitional Council’s troops. Given the reports that captured fighters were killed, this is a logical decision. In addition, these forces may also have unlawfully detained civilians. That the ICC also intends to investigate NATO’s actions comes as a welcome surprise. This makes it for the first time unambiguously clear that the International Criminal Court is not a tool in the hands of Western countries intent only on bringing African leaders to justice for their conduct. The reproach that the ICC is a Western plaything has not been plucked out of thin air. Every criminal investigation established by the Court has focused on issues in Africa. Libya followed Kenya, Ivory Coast, Sudan, Congo, Uganda and the Central African Republic as an area of investigation. In the case of Sudan and Libya the referral came from the Security Council. For Kenya and Ivory Coast, the initiative was that of Prosecutor Moreno-Ocampo. In the other cases it was the countries themselves, because they felt that their own legal systems were incapable of completing the necessary investigations, prosecution and judgment.

I am not worried about the prospect that the US will, as a result of Moreno-Ocampo’s step, once again distance itself from the ICC. Former President George Bush did, it’s true, refuse to continue with the Court’s approval procedure, but his successor Barack Obama has a different attitude. Under his leadership relations with the ICC have improved and the US is attending meetings of the supervisory organ of the Court as an observer. Last year Obama called on Kenyan leaders to cooperate fully with the Court’s enquiry and this year the US is supporting the referral of the situation in Libya to the Court. We can only hope that other important refusers such as Russia, Israel and Iran will also seek to make further overtures to the ICC and whatever else they may do, refrain from anything which may undermine its objectives.

It is still too early to conclude that, in addition to the Libyan people, the International Criminal Court has been the winner of the Libyan war. The statement by NATO head Anders Fogh Rasmussen that there is “no reason for further investigation” is hardly reassuring. If NATO has done nothing wrong, there is absolutely no reason not to cooperate fully with the ICC enquiry. That is, after all, what we expect all of the other parties involved in the war to do. The international Criminal Court can only be credible if in each situation all parties to a conflict are treated equally. The Netherlands is the Court’s host country and should be arguing this as forcefully as possible.

This article first appeared on 10th November, in Dutch, in the daily newspaper Het Reformatorisch Dagblad

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