Calls are mounting in the media and in Washington for ICC action on the carnage and killings in Middle East revolts. Letters and op-eds in the New York Times and editorials in the Washington Post, among others, have urged ICC investigations and trials, especially in Libya. New Jersey Senator Robert Menendez (D) has introduced a resolution in the US Senate calling for Court action in Libya. These US reactions have been encouraged by similar demands in Europe and by international condemnations such as the statement by UN High Commissioner for Human Rights Navi Pillay and in the Security Council.
Some of these demands do not recognize that because the countries where uprisings are happening do not belong to the ICC, it cannot have jurisdiction over them unless a new government voluntarily accepts it or the Security Council refers a situation to the Court. The ICC prosecutor has recently emphasized this in a brief statement on Libya.
Nonetheless, it is very likely that some of the Middle East revolutions will produce ICC investigations, prosecutions and trials. The ICC was designed deliberately as a permanent court which could start to deal with crimes as they occurred, rather than being established only afterward, as with the tribunals for Rwanda and the former Yugoslavia. It can therefore partly satisfy the urge for immediate action which is so clear in the calls on it now.
Despite the Prosecutor’s rather absolute statement of no investigation because there can be no jurisdiction in Libya, he has in fact done evaluations and assessments of several situations in which there is no present prospect of ICC jurisdiction. He will come under heavy pressure to do the same in the Middle East.
Since new or surviving governments are unlikely to have the will or political coherence to declare acceptance of ICC jurisdiction, it will have to come through Security Council referrals. There are several things to remember about referrals: the US abstained on resolution 1593 referring the Darfur, Sudan situation to the ICC, and is likely to abstain or even support a referral of crimes it has already forcefully condemned; the Court does not have to accept a referral; since a referral conveys an entire situation, not just specific cases, the Court may investigate crimes in that situation by anyone on any side; and the ICC jurisdiction a referral may activate can only take on a few persons with the finally greatest and ultimate responsibility for the very most serious atrocity crimes.