CICC: Libya - a new task for ICC

The International Criminal Court has much work to do, especially since the landmark decision by the UN Security Council Saturday, to refer the case of Libya to the court. But how long will it take to prosecute suspects? A conversation with William Pace, Convenor of the Coalition for the International Criminal Court (CICC), a global coalition of 2,500 NGOs.
By Geraldine Coughlan, The Hague
Will the ICC have to investigate the situation in Libya now?
No. The referral by the UNSC does not automatically trigger an ICC investigation as the court operates independently of the UN. It will now fall to the prosecutor to analyse the seriousness of the information received and decide if there is a reasonable basis to proceed with an investigation. In this process, he could seek additional information from States, the UN, intergovernmental and non-governmental organisations or other reliable sources. Unfortunately states and international and regional organisations have not always been consistent with this obligation as we have seen in other cases. Hence it could take months or years before a suspect could be brought to The Hague.
Who will monitor the progress of this case?
In addition and as part of this undertaking, the prosecutor has been invited to address the UNSC within 2 months and every 6 months thereafter on the progress made. We also should keep in mind that should an investigation be opened, it could still take some time before the prosecutor is able to gather sufficient evidence to initiate a case against specific individuals for the alleged crimes, which the Prosecutor has himself indicated could amount to crimes against humanity. It’s important to note in this respect that those responsible have not been identified by the prosecutor, so we can only speculate at this stage who is responsible for what and when they might appear in The Hague.
When will the crime of aggression become effective?
The amendment is done. This was one of the biggest untold stories of 2010 – that the governments have agreed on the definition of the crime of aggression. It’s now in the treaty and they’ve agreed on amendments on how the court will exercise jurisdiction.
It will require 30 countries to ratify the amendment. Then it will also require that the ASP after 1 January 2017, gives the go-ahead to the court to begin to exercise jurisdiction over the crime. But it’s like the Rome Statute – the amendment to the treaty is done, now it’s a matter of state ratification and then the governing body making the decision to say to the court, “OK, we can begin exercising your jurisdiction”. Because it takes many countries at least 2 or 3 years to do any treaty ratification, it would take the court several years I think to get ready for exercising this new jurisdiction.
Could the case against Bashir be deferred, as requested by the African Union?
Yes. There are very clearly governments who feel that President Bashir is so important to peace between north and south Sudan. They believe that if giving him a deferral from the charges of war crimes, crimes against humanity and genocide – for crimes committed in the Darfur region of Sudan, will help him not to go back to war and to respect the north-south process - then he deserves this deferral.
Most of our members fiercely disagree with the idea that excusing anyone - allowing even temporary impunity for these crimes will be helpful and I think if you look at how Article 16 works – year by year - it would be a risky situation if they think that Bashir should be rewarded. Given that the vote was something like 98% in favour of creating a south. This wasn’t a close election, so why everyone is complimenting him for not stealing that election is beyond me.
Will the US sign up to the ICC?
I don’t think that one should be optimistic over the next 5 to 10 years that the US will ratify the treaty - but there is great optimism that the US could become more formally constructively engaged as an observer country and as a country that is participating in trying to help make certain that the court and complementarity in the Rome Statute system work.
 
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Earlier IJT editions:

• International Justice Tribune, 122 (16 February 2011)
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• International Justice Tribune, 120 (19 January 2011)
• International Justice Tribune, 119 (14 December 2010)
• International Justice Tribune, 118 (1 December 2010)
• International Justice Tribune, 117 (17 November 2010)
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• International Justice Tribune, 115 (20 October 2010)
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• International Justice Tribune, 113 (21 September)
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• International Justice Tribune, 109 (30 June 2010)
• International Justice Tribune, 108 (16 June 2010)
• International Justice Tribune, 107 (2 June 2010)
• International Justice Tribune, 106 (19 May 2010)
• International Justice Tribune, 105 (5 May 2010)
• International Justice Tribune, 104 (21 April 2010)
• International Justice Tribune, 103 (7 April 2010)
• International Justice Tribune, 102 (24 March 2010)
• International Justice Tribune, 101 (10 March 2010)
• International Justice Tribune, 100 (24 February 2010)
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• International Justice Tribune, 90 (30 September 2009)
• International Justice Tribune, 89 (16 September 2009)