Referral of Libya Attacks to the ICC: Sweet, or Bittersweet?

As court-watchers well know, longtime Libyan leader Moammar Gaddafi long has been a thorn in the ICC's side.

It's not just that Libya's not a party to the Rome Statute that governs the decade-old, Netherlands-based ICC. The same holds true of many of Libya's Arab neighbors -- not to mention a number of very large states east and west, like China, Russia, and the United States. Rather, Libya's particularly prickly relation to the ICC stems from Gaddafi's efforts to exerts his brand of leadership on the African continent.

To cite an example: It's no accident that, as Pittsburgh Law Professor Charles Jalloh, among others, has noted, the first African Union resolution condemning the ICC's pursuit of Sudanese President Omar al-Bashir occurred at a meeting in Libya. (Bashir remains under ICC indictment on charges of genocide and crimes against humanity related to government attacks on the people of Darfur.)

Libya also is a member of the Human Rights Council, formed in 2006 as a means better to promote human rights within U.N. member states and throughout the world. The Human Rights Council broke with Libya on Friday. Reports that the Gaddafi regime had ordered aerial attacks and street-thuggery against its own, unarmed civilians compelled the Council unanimously to urge the General Assembly to suspend Libya's U.N. membership.

Last night the Security Council went giant steps further, not only imposing sanctions and an arms embargo, but also referring the Libya matter to the ICC. The vote was unanimous not only among the Council's ten temporary members, but also among the five countries that hold permanent Security Council seats. ICC nonparty China put aside earlier-reported misgivings, and the United States, another ICC nonparty, openly supported an ICC referral for the first time ever.

Here're the pivotal paragraphs of Security Council Resolution 1970 (February 26, 2011):

The Security Council,


Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,


ICC referral

4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily; ...

The resolution zeroes in on Gadhafi -- and what little seems left of his regime in the wake of many ministerial defections to the antigovernment side.

Worth noting: The caveat concerning a national of a nonparty state present at the scene by authorization of the Council -- presumably, a person deployed as a U.N. peacekeeper. Evidence that such a person took part in criminal behavior must be referred to the state of nationality; by the terms of paragraph 6, absent a waiver the ICC would have no jurisdiction over such a malefactor.

Some cause for concern: The foisting of the costs of ICC investigation onto the ICC and states that choose voluntarily to contribute. That provision in paragraph 8 hints at certain lingering reluctances regarding the ICC, and serves to remind of the deaf ear that the Security Council has turned to the ICC Prosecutor's pleas for aid in effecting the arrest of international fugitive, and still-incumbent Sudanese President, Bashir.

It's to be hoped the Security Council's newfound spine will translate into helping the ICC as it endeavors to respond responsibly to yet another weighty referral. It's also to be hoped that the ICC will rise to the "test," to quote Professor William Schabas of the Galway-based Irish Centre for Human Rights; that is, the ICC "must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis."

If not, today's irony may prove more bitter than sweet.