THE INTERNATIONAL CRIMINAL COURT

1. THE INTERNATIONAL CRIMINAL COURT Hayden-Patrick-Abbey-Mezhgon-Stefana

2. Libyan Crisis The crisis in Libya comes in the context of wider unrest throughout the Middle East and North Africa. The pro-democracy protests have been spreading throughout a region controlled by authoritarian regimes from left and right of the political spectrum, and both pro and anti-West. Colonel Muammar Gaddafi came into power over 40 years ago in a coup, and since then had been seen as an international threat due to his brutal willingness to kill civilians that threaten his position. His rule was oppressive, banning dissent and the formation of any other political parties. Gaddafi agreed to end his nuclear weapons program in 2003, so sanctions implemented by the UN were lifted. The crisis began with peaceful protests against the Gaddafi regime in February of 2011 and resulted in a violent crackdown. The situation quickly escalated into an armed rebellion as ordinary citizens took up arms to free them from the brutal regime. Despite some military defections, the opposition has generally been a disorganised and out-gunned rebel force.

4. Gaddafi threatened to punsishthose who opposed him and some of his forces had begun to close in on Benghazi, where the opposition had created a Transitional National Council. The UN Security Council followed up on an earlier Resolution 1970 – which called for restraint and reporting to the International Criminal Court for any human rights violations – The Resolution 1973 was put in place, in mid-March to authorise a no-fly zone to protect civilians. The Resolution allowed “all necessary measures to protect civilians and civilian populated areas under threat of attack”. However it explicitly “exclud[ed] a foreign occupation force of any form on any part of Libyan territory”. The bombing campaign began quickly after the Resolution authorised a no-fly zone and French jets started the first wave of attacks. The US joined later with a barrage of cruise missiles on various military targets. The Arab-League tentatively supported the no-fly zone, although the League’s secretary General AmrMoussa said, “What is happening in Libya differs from the aim of imposing a no-fly zone... And what we want is the protection of civilians and not the shelling of more civilians”.

6. The uprising increased, and Gaddafi seemed to be in a precarious position. The Gaddafi government announced a ceasefire after the Resolution passed, however they failed to uphold it, and the rebels were accused by the regime of violating the ceasefire set by the Libyan government. The rebels later rejected offers of a ceasefire from the government, as well as efforts made by the African Union to end fighting, as the plans offered did not include the removal of Gaddafi. Gaddafi remained at big until 20 October 2011 when he was captured and killed attempting to escape from Sirte. The National Transitional Council “declared the liberation of Libya” and the official end of the civil war on 23 October 2011. Low-level insurgencies still continued after the war by former Gaddafi loyalists, and there have been various disagreements and strife between the local militia and tribes. The most serious of these clashes occurred in late January 2012.

8. How has the state failed in its aims? Libya suffered prolonged tyranny under the Gaddafi regime which, as a state failed in its aims. Firstly the state failed in protecting its sovereignty as the UN had imposed sanctions on it in the past, and had a UN Security Council Resolution passed on them. Above all it did not protect its people from violations of human rights as it was the perpetrator of these violations. It failed to maintain law and order within its borders through legal and reasonable means, and failed to provide the security that the population demanded. Democracy was called for and the regime took no positive action, but rather reacted with violence and only exacerbated the situation.

9. Sovereignty Gaddafi’s regime did not deserve to have its sovereignty respected because it failed to protect the basic human rights of its citizens. The new government does deserve to have its sovereignty respected as they are attempting to pave the way towards democracy, and fulfil their aims as a state.

10. The International Criminal Court (ICC) The ICC was established in 1998 and came into force on 1July 2002, following ratification of the Rome Statute by 60 states. It consists of 18 judges that are elected by secret ballot and is based in The Hague. The ICC is an independent international organisation NOT LINKED to the UN. By 2011, 108 states had ratified the Rome Statute. The ICC is a permanent court with global jurisdiction and the power to try individuals’ accused of the most atrocious crimes, including crimes against humanity, genocide and war crimes. The role of the ICC is distinct from the ICJ as it does not deal with cases between states, but solely individuals.

11. The court can exercise its authority over crimes committed within the boundaries of any state party to the Rome Statute. However, the court can only try crimes committed since 1 July 2001, when the Statute entered into force. • The four aims of the ICC are to: • Ensure the worst perpetrators are held accountable for their crimes • Serve as a court of last resort that can investigate, prosecute and punish the perpetrators of genocide, crimes against humanity and war crimes • Assist national judiciaries in investigating and prosecuting the worst perpetrators, allowing states to be the first to investigate and prosecute • Help promote international peace and security by deterring future would-be perpetrators

12. Opposition to the ICC • The ICC has seldom achieved its aims in the past decade, battling a lack of state support, with global powers such as the United Nations, Russia and China refusing to ratify the Rome Statute. • Detractors of the International Criminal Court have too prevented the effective achievement of its aim, with many African Nations reluctant to carry out arrest warrants issued by the court. • Arab and Muslim states are suspicious of the court, concerned that it is a tool of Western justice, impeding the work of the ICC in countries such as Libya.

13. However, the Security Council’s referral of Libya’s violent crackdown on pro-democracy protests to the ICC suggests that the effectiveness of the Court may increase. • The Prosecutor’s attempts to prosecute Libya’s Muammar Gaddafi, has been particularly contested, and the African Union has decided not to enforce ICC arrest warrants for the leader.

14. The ICC in Libya • On February 26, 2011, U.N. Security Council Resolution ‘1970’ referred the situation in Libya to the ICC. This action provides the ICC with jurisdiction over war crimes, crimes against humanity, and genocide occurring in Libya since that date, even though Libya is not a state party to the Rome Statute. • The United States voted in favour of the resolution, the first time it has done so in referring an issue to the ICC. • ICC President Sang-Hyun Song, suggested in April. that the Libya investigation had placed significant pressure on the Court’s budget, which could potentially “impede the Court’s ability to advance its existing prosecutions or examinations of new situations.”

15. ICC Warrants in Libya Saif Al-Islam Gaddafi (Libyan de facto Prime Minister) Warrants of Arrest: issued on 27 June 2011 Abdullah Al-Senussi (Colonel in the Libyan Armed Forces) Warrants of Arrest: issued on 27 June 2011 Muammar Gaddafi (Libyan Head of State) Termination of the case: 22 November 2011, following his death

16. The death of Muammar Gaddafiin October 2011 and the disappearance of Abdullah Al-Senussi following the issuing of an ICC warrant on 27 June 2011have meant that the ICC has failed in its aim of prosecuting the perpetrators of genocide, crimes against humanity and war crimes in Libya. • SaifAl-Islam Gaddafi’s capture has been confirmed by the ICC who has questioned Libya over his detention and trial. The new Libyan government is unwilling to comply with the ICC’s demands on the surrendering of Gaddafi to the court, as they wish to prosecute him themselves. • On February 3, 2012, the ICC concluded: '…there is no basis for asserting that the ICC should defer the case to Libya... Unless Libya immediately implements Gaddafi's rights, the ICC will report Libya to the Security Council.’

17. This situation has furthered the ICC’s inability to prosecute Libyan’s perpetrators of heinous crimes against humanity This makes it possible to evidently conclude that the International Criminal Court has failed to achieve its aims in the state of Libya.

18. The objectives achieved in Libya (or lack thereof) • On many occasions the International Criminal Court (ICC) have not achieved their main aims and objectives. There are many examples where there have been warrants handed out that have either not been acted upon or haven’t passed. • On the 16th of May 2011 The International Criminal Court prosecutor has asked judges to issue an arrest warrant for Libyan leader Muammar Gaddafi and two other senior members of his embattled regime for crimes against humanity. • In response, KhaledKaim, Libya's deputy foreign minister, said: “The ICC is not important for us. We are not part of the Rome statute. We will not show any attention to the decision.” It seems in this case, that the power and influence exerted by the ICC had no effect on Libya due to the fact they are not part of the Rome Statute.

19. Then there are the beliefs by the Libyan leaders that it is the international community that is at fault and should be charged for the crimes against humanity. Mr Khaim said it was NATO which was guilty of breaking international law by targeting Col Gaddafi and civilians in airstrikes. “This has nothing to do with democracy, protecting civilians or implementing the UN resolution,” he said. “Britain and France have been showing no respect for civilian lives. It is blood for oil instead of protecting civilian lives.” • Also it is evident that the influence that the ICC has on a leader like Ghadaffi is that An international arrest warrant would however make it hard for Gaddafi to live in exile. Because the Security Council ordered the ICC investigation, all U.N. member states would be obliged to arrest him if he ventures into their territory. • On the 27th of June 2011 The International Criminal Court issued arrest warrants for Libya's Muammar Gaddafi, his son Saif al-Islam and the country's spy chief, Abdullah al-Senussi, on charges of crimes against humanity.

21. It is clearly evident that the influence of the ICC is fading…. • The number one fugitive, Colonel Gaddafi, was killed by the protestors. His politically prominent son, Saif al-Islam and former head of military intelligence, Abdullah al-Sanousi, are in custody in Libya, not detained in The Hague. On his first trip to post-Gaddafi Tripoli, the Prosecutor of the ICC, Luis Moreno-Ocampo, briefly repeated the technicalities of the ICC's jurisdiction…Only if national courts are unwilling or unable to prosecute international crimes, does the ICC have jurisdiction. Moreno-Ocampo is more often heard criticizing governments for failing to carry out ICC arrest warrants.

23. The ICC's influence and power exerted in Libya was inadequate. It owes its jurisdiction to the UN Security Council, and can only investigate events from 15 February 2011 onwards. The extended regime crimes of Gaddafi's four decade-long dictatorship are beyond the ICC's responsibilities. Yet, in the eyes of everyday Libyans, the part played by al-Islam and al-Sanousi (and indeed, Gaddafi) in the repression of protests earlier this year is the least of their crimes. • The ICC relies completely on the willingness of member countries to bring these criminals to justice, yet there are only a handful of countries that are completely obliged to arrest those for whom the ICC issues warrants. Several other countries have signed on, but never ratified the treaty while still others (the United States included) have refused to recognize the legitimacy of the ICC.

24. Criticisms/positives of the action they have taken • Libyan Prime Minster Abdel Rahim el-Keeb confirmed that they had captured Saif al-Islam, second son of Muammar Gaddafi. • Positives • Prime Minister Abdel Rahim el-Keeb has promised a fair trial for Saif al-Islam. • He would be treated in accordance with international law and Libyan judicial authorities, and would communicate with the ICC to determine the location of his trial. • They welcome cooperation with international institutions. • A spokeswoman for the ICC prosecutor said: • “We are in touch with the Libyan Ministry of Justice to ensure that any solution with regards to the arrest of Saif al-Islam is in accordance with the law.”

25. Criticisms/positives of the action they have taken • Negatives • There was a lot of debate as to where he would be tried, the ICC says that he must be tried at The Hague. • Libya wanted to trial Said al-Islam themselves, rather than holding the trial at The Hague, which may lead to some controversy over their intentions. • The International Criminal Court denied that they had agreed for Saif al-Islam to be tried in Libya. • ICC & Libya continued the debate around where he would be tried, with Libya claiming that “The ICC has accepted that Seif al-Islam will be tried in Libya by the Libyan judiciary… The trial will take place in Libya. The Libyan justice is competent and we gave the file (on Seif) to the ICC on Friday,”

26. Human Rights Watch • “The authorities will send an important message that there’s a new era in Libya, marked by the rule of law, by treating Saif al-Islam humanely and surrendering him to the ICC,” said Richard Dicker international justice director at Human Rights Watch. “His fair prosecution at the ICC will afford Libyans a chance to see justice served in a trial that the international community stands behind.” • "In any event, we call on the international community to support Libya to fulfil its obligations either to investigate or prosecute or to transfer Saif al-Islam to face trial before the ICC. We urge the ICC to be ready to try Saif al-Islam themselves, preferably in Libya, by ensuring it is ready to establish a field presence and begin outreach to victims and the affected communities immediately. We further call on Libya and the international community to intensify efforts either to arrest al-Senussi or determine definitively that he has died.

27. Debate • The Following editor of this article S.R.H. Hashmi comments on the International Community harassing the Libyan government • In a visit to Libya last November, the ICC Chief Prosecutor Luis Moreno-Ocampo said "The standard of the ICC is that it has to be a judicial process that is not organized to shield the suspect." • However, it is surprising that he should say that because in the case of the biggest war criminals and mass murderers of the century, George Bush and Tony Blair, the ICC did not show any enthusiasm in pursuing the case, much less ask for a befitting punishment, and that in my view does not quite establish their credentials as great believers and enforcers of justice and hardly justifies their loud-mouthing about their 'standard.' Surely, this is not Luis Moreno-Ocampo but the Libyan people who suffered violent clamp-down by Muammar Gaddafi's regime so why on earth would they want to shield Seif?

28. In response • “Certainly, the ICC and the International Communities have become suspicious and irritated by the sudden visit of the Sudanese Ruler, especially if he and his regime are under the scrutiny of the ICC and the International Community for Human rights and crimes Violations against his own people. • Yes, Most of the Libyan's, the world, ICC and the International Communities have the legitimate right to become worried, especially when the Libyans themselves paid dearly for liberating their own country from 45 years of thuggery and lawlessness under the rule of the multi-nationals, Gadhafi and Regime gangs rule.”

29. http://www.youtube.com/watch?v=UzhTDWlH5cw&feature=related • http://www.youtube.com/watch?v=c3WfCep_E-U