AMICC's Analysis of Heritage Foundation Criticism of UNSC Referral of Libya to the ICC

In Heritage WebMemo #3180 Brett Schaffer and Steven Groves conclude that the recent referral by the Security Council of the situation in Libya to the International Criminal Court (ICC), shows that international justice cannot be severed from political motivations and that this confirms that the United States is right to be wary of the Court. Their argument for this conclusion is that both the referral and the Prosecutor’s decision to act on it with an investigation are premature. They see the provision (known as “complementarity”) in the Court’s Rome Statute that it defer to genuine and appropriate national investigations and trials as requiring the Court to wait in a situation like Libya until a successor government is in place. Accordingly, they charge that in making the referral now the Security Council has "fallen victim to political pressure” and in responding the Prosecutor has let his “decision be driven by political expediency.”

These assertions are based on a serious misreading of the Statute. A major motive in the international community for the creation of the ICC was dissatisfaction that none of the existing international criminal tribunals such as those for Rwanda and Yugoslavia were able to act against crimes in progress. The ICC was therefore specifically designed as a permanent court that can act on evidence that conduct amounting to a crime within its jurisdiction has happened whether or not that conduct continues to go on.

The Rome Statute clearly requires the Court to defer to national investigations or prosecutions which an appropriate country already has the resources and the will to pursue. It is evident in the Statute and its history that its framers were anxious to avoid a situation where a country could indefinitely delay ICC proceedings by making promises for the future.

Finally, the article sees politically motivated haste in the Prosecutor’s decision to investigate despite his lack of representatives inside Libya and the challenges of gathering evidence about crimes there. In fact, the prosecutor’s first duty was to find enough evidence to justify the formal investigation he has now begun. That investigation must in turn collect the detailed and exhaustive evidence required to meet the much higher standard for arrest warrants. The prosecutor may not have his own people in Libya now, but it is likely that the revolutionaries will welcome them. Moreover, there are ample other sources in journalists, Interpol, refugees and information from governments and NGOs. The prosecutor successfully used sources like these to support formal investigations and arrest warrants in Darfur, from which he was almost entirely excluded. He has just announced that he is turning to such sources now in the formal investigation.

The ICC is a Court empowered to act in response to information and requests about current crimes. In response to its design and not to political influences, it is so acting in its response to the alleged and likely atrocities in Libya.