Libya and the ICC: don't all rush

3 March 2011

Do not expect The United Nations Security Council’s unanimous referral of the situation in Libya last weekend to The International Criminal Court (ICC) to result in instant arrest warrants and suspects appearing in The Hague. The ICC may also prove not to be the most appropriate forum to bring to account those responsible for alleged crimes against humanity.

The Prime Minister warned the Libyan regime they “should remember that international justice has a long reach and a long memory”. But any prosecution against those who have committed crimes against the Libyan people will not be straightforward wherever they take place.

Libya is not a party to the Rome Treaty that set up the ICC.  The prosecutor at the Court could only, therefore, investigate alleged crimes if the  Libyan authorities  decided to accept the jurisdiction of the Court or there was a referral by the Security Council. The only other referral, in 2005, related to events in Darfur, Sudan, but that was not unanimous. Libya’s referral was, unlike Sudan’s, very shortly after trouble began. Do the Security Council intend in the future to use this route in similar situations?  If so it will hugely affect the work of the Court. 

The ICC prosecutor has opened a “preliminary inquiry” but will now have the difficult task of gathering and evaluating evidence from within Libya itself. Judging by the speed of the Court it will be a considerable time before any arrest warrants are contemplated. Six years after the Sudan referral, four cases are before the Pre-Trial Chamber, one of the suspects appearing voluntarily in 2009 and the other three suspects still remaining at large.

Other alternatives exist but all have their complications. The ideal position, undoubtedly, would be for Libya under its own domestic legal system to prosecute anyone one who has committed offences. However the necessary legal structure may not be in place. Iraq was able, commendably, to try Saddam Hussein and members of his regime although not without controversy.  Alternatively an international tribunal could be set up either in Libya or elsewhere. There is precedent for this.  Charles Taylor, the former Liberian leader has been standing trial in The Hague for alleged war crimes in Sierra Leone. Any such tribunals would need the agreement of Libya. They are costly, protracted and contentious. The precise terms of reference, especially as they are set up after the event, always give rise to criticism. However this possibility will be frustrated if those alleged to have taken part have fled.

The UK could also become involved. We have extra- territorial or universal jurisdiction to try in our courts those responsible for grave breaches of the Geneva Convention wherever those breaches have occurred.  The Attorney General would have to agree to any prosecution and under legislation currently being debated in Parliament, if passed, any arrest warrant could only be granted if the DPP consented. The alleged perpetrators would either have to be here or brought here. This course would have many complications, involving an investigation by our Police and relying naturally on evidence from within Libya.

There are potential opportunities to bring those alleged to be responsible for any crimes to account. However experience has shown from international conflicts around the world in recent times that all will encounter considerable difficulties.

Michael Caplan QC
A Senior Partner
Kingsley Napley LLP

This article appeared on the Times Online, Thursday 3 March 2011.

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