The Business Day

ON SATURDAY evening, the United Nations (UN) Security Council unanimously passed Resolution 1970 (2011), referring the "situation" in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of Security Council measures directed at the Libyan regime, including a travel ban and asset freezes for Col Muammar Gaddafi and his associates, and an arms embargo.     

It is the first concrete action by the council relating to the events that began last month, as increasing reports of widespread attacks on civilians in Libya confirm the lengths to which Gaddaf i will go to cling to power. It is also fitting that Gadda fi — who has recently been central to undermining the ICC through his political influence in the African Union (AU) — should now find his regime’s crimes referred to the court.     

This is only the second time that the council has used its discretion under the ICC’s Rome Statute to refer a matter to the court for possible prosecution. The first referral, under Resolution 1593 (2005), was made in respect of the situation in Darfur, which led to an arrest warrant being issued for Sudanese President Omar al-Bashir for war crimes, crimes against humanity and genocide (al- Bashir remains at large).     

Up until the vote on Saturday, it was not clear whether China and Russia (states openly hostile to the court) would allow it to pass. In the end, they abstained from using their veto.     

Of equal significance is that the three African members of the Security Council — Gabon, Nigeria and SA — supported the referral, notwithstanding continuing tension between African states and the court over the investigations relating to Darfur and Kenya.     

Notably, Resolution 1970 made explicit reference to Article 16 of the Rome Statute, which allows the Security Council to defer an investigation by the court in order to maintain international peace and security.     

This was included over concerns raised by some states that the referral might become an obstacle to future peace efforts.   

What about the prospects going forward? As with all the other matters currently before the court, the target of the investigation is an African country, which critics of the ICC will be quick to point out.      

Like Kenya, the crimes under investigation emerge from an internal political dispute that has escalated rather than a typical armed conflict involving an armed, organised rebel group or insurgency (such as Darfur, the Democratic Republic of Congo, Uganda) or another state (think Georgia or Gaza).    

Like Sudan, the investigation will have to take place in respect of a state that is not a party to the Rome Statute and despite the government under investigation being overtly hostile to the proceedings.    

For these reasons, sceptics are likely to conclude that it will result in the same difficulties that have left the court politically isolated in its region of operation (Africa), without a conviction after 10 years of operation and with increasingly impatient benefactors. There are, however, aspects of the Libyan referral that are different.      

For one, it is surely the earliest the court has ever become involved in a situation: just more than a week since the protests in Libya started. This creates the potential for the court to act as a deterrent for future atrocities and alter the conflict dynamics in a game- changing manner.    

For that to happen, it is vital that the prosecutor of the ICC seize the initiative and move with all deliberate speed to investigate the alleged offences.     

Moreover, the Libyan regime is one of the most politically isolated — both domestically and internationally — government the court has yet been asked to investigate.   

This increases the prospects of states co- operating with the court to ensure that its orders are carried out.      

A useful comparison here is Sudan, where the court became involved in an established conflict, involving a government that had sufficient domestic support to ensure the court never operated in its territory, and (to date) sufficient regional and international support to prevent its orders, most notably the al-Bashir arrest warrant, from being executed despite legal obligations on states that are party to the Rome Statute. You may recall that Chad and Kenya, notwithstanding their membership of the ICC, allowed al- Bashir to visit their territories in defiance of the court’s arrest warrant. In Libya, the hope is that there may be sufficient co-operation domestically, particularly from the successor to the current regime and internationally, to secure the arrest and prosecution of those responsible for the violence.     

Finally, the Libyan referral needs to be situated within the broader Africa-ICC narrative. Gaddafi has been a key protagonist in bringing the relationship to its current low — with the AU ordering noncooperation in respect of al-Bashir, requesting deferrals in respect of both the Darfur and Kenya investigations, and attempting to amend one of the Rome Statute’s most finely balanced political compromises (Article 16).     

One might be tempted to think he did so presciently, in anticipation that he might one day be caught in the court’s crosshairs — but that would be to ignore his insufferable arrogance that appears to blind him even now to the reality of the situation. Included in that reality is that even for the AU, supporting the Libyan leader in the same manner as it has al- Bashir might be a bridge too far. For one, many African states will be acutely aware of the potential contagion effect of the people’s revolution sweeping the north of the continent and the danger of being aligned with the ailing regime.      

The AU’s silence on the referral to the ICC speaks volumes.    

More so, three African states voted in support of the r eferral, including powerhouses Nigeria and SA, the latter having publicly committed itself to "towing the AU line" in its dealings on the Security Council (can one infer, therefore, that SA’s position mirrors the AU line?).    

It will now be difficult to take seriously claims that the ICC’s involvement in Libya is a further example of the court’s unhealthy preoccupation with Africa.    

Moreover, one can hope that the apparent support within Africa for the Libyan referral might have the unintended but welcome effect of unmasking many of the AU’s ICC positions for what they are — political rather than principled objections.     

That hope should not obscure the depressing realpolitik so often at play in these cases. Because the sovereignty and power he wielded for so long appear to be slipping away, there is no real reason for the AU to fight for Gaddaf i.    

While the AU has kept mum as the Security Council intervenes to demand accountability for the crimes in Libya, make no mistake: the apparent African support for the Libyan referral is because Gadda fi is increasingly yesterday’s man.     

-Du Plessis and Gev ers are with the University of KwaZulu-Natal and, respectively, are senior research associate and consultant with the International Crime in Africa Programme of the Institute for Security Studies.

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