Worldview Commentary No. 298 on WBEZ 91.5 FM in Chicago

“Libya and the ICC: Peace, Prevention and Justice”

Amid the bombs and bloodshed in Libya, it would be easy to overlook the historic action taken ten days ago by the United Nations Security Council. The Council not only condemned human rights violations, ordered a freeze on Libyan assets overseas, imposed an arms embargo and banned travel by Muammar Qadhafi and his cronies, but it also – unanimously – referred the Libyan situation to the International Criminal Court.

Some might dismiss the threat of prosecution as nothing more than a yelp of impotence by a world community not yet willing to act more forcefully to protect a people from its dictator. If so, this would not be the first time. During the war in Yugoslavia, the UN Security Council repeatedly condemned atrocities, but delayed two years, until 1993, before finally establishing an international tribunal to prosecute the perpetrators.

More recently, mayhem reigned in Darfur for two years before the Security Council finally managed, in 2005, to refer the situation to the ICC.

Neither case saw timely and effective military action. Now, once again, rebel pleas for a no-fly zone over Libya have gone unanswered. It is easier to threaten prosecution. But any trial will come too late to save countless lives. For hundreds of Libyans shot dead by the hired guns of the Prince of Princes, it is already too late.

Even so, we are much closer to justice than we were at comparable stages in Yugoslavia and Darfur. And the ICC referral may yet help to curb the killing.

The Libyan referral suggests that the United Nations – and its big powers – may have learned some lessons. In Yugoslavia and Darfur, the Council took two years to refer the situations for prosecution. In Libya, it took less than two weeks.

And now justice can move much more swiftly. Unlike the situations in Yugoslavia and Rwanda in the 1990’s, the world now has an up-and-running international criminal court. This avoids the start-up delay suffered in Yugoslavia. Even after finally agreeing to establish a tribunal in 1993, the Security Council took three months to approve its statute and then another 15 months to bring on board a prosecutor, Judge Richard Goldstone of South Africa. Understandably, Judge Goldstone then required months more to hit his stride.

In contrast, today hundreds of professionals experienced in investigating atrocities are already at work in The Hague.

And chief Prosecutor Luis Moreno Ocampo of Argentina seems to have learned some lessons of his own. When the Council referred Darfur to him in 2005, he took months to recommend opening a full investigation, and nearly two years to recommend indictments. But now, after the Libyan referral, he took only five days to recommend opening a full investigation. (His recommendation must now go before a three-judge pretrial chamber for approval.)

The Libyan referral also enjoys unprecedented support by three veto powers on the Security Council: the United States, China and Russia. When the ICC formally came into being in 2002, it faced aggressive hostility from Washington. The Bush Administration withdrew the US signature from the ICC treaty. Threatening aid cut-off’s, US diplomats browbeat other countries to agree never to send US citizens to The Hague. Congress passed a law – still on the books – authorizing the President to use “all necessary means” to free any American who might be detained by the ICC.

By 2005 the hysteria on the Potomac subsided. After fierce internal debate, the Bush Administration agreed not to block the Security Council referral of Darfur to the ICC. Rather than either veto or vote yes on the referral, the US abstained, thus allowing the referral to take place. So did China and Russia.

Now all three powers have for the first time voted affirmatively to refer a situation to the ICC (even if, sadly, the price of their support is a gratuitous proviso that the referral does not authorize trials of non-Libyans).

Qadhafi may well never be brought to justice. He says he will fight to the death. But not all his henchmen are equally fanatical. If the war goes badly, some may choose arrest instead.

The ICC referral also includes modest incentives to halt the bloodshed. The Security Council resolution pointedly refers to article 16 of the ICC Statute, under which the Council has the power to defer any ICC investigation for renewable 12-month periods. The implicit message to Qadhafi: agree to step down and stop the killing, and we may spare you from the dock.

In announcing that he has seen enough evidence to warrant a full investigation, prosecutor Moreno Ocampo explicitly warned Qadhafi’s military chiefs, “If forces under their command commit crimes, they could be criminally responsible.”

Threats of prosecution will not dissuade a deluded dictator from the fight of his life. Whether they may be heard by others in Tripoli remains to be seen.

Not only does the ICC open the door to eventual justice, then, it also gives the world another diplomatic tool for peace. Whether or not it proves to have any effect in Libya, the world has at last learned how to put it swiftly in play. It is not the only tool, and may not be the most important, but it is a welcome addition to our limited options for peace.

Doug Cassel’s commentaries are broadcast on the Worldview program on WBEZ Radio, 91.5 FM in Chicago, a broadcast channel of Chicago Public Media. Audio and archives are accessible at www.wbez.org and humanrights.nd.edu. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or WBEZ.