Reference of Syria by UN Security Council to the ICC?

Amid increasing calls for a Security Council reference of Syria to the International Criminal Court (Amnesty and others) due to the breakdown on the civilians by the Syrian government, the UN Human Rights Chief fortified this claim by lending credence to this cause of prosecuting international crimes being committed in Syria.

In fact, earlier Libya had raised questions about the ‘double standards’ of the referral system to the ICC by the UNSC.

The pressure on the UNSC is increasing to pass a resolute decision on whether it would refer Syria to the ICC, as evidence strongly points towards commission of international crimes by the al-Assad regime. Although the political nature of international criminal justice, about which I have blogged earlier, is clearly affecting the cause of peace and justice.

The Political Nature of International Criminal Justice

The Justice in Conflict blog has recently posted an excellent post about how international criminal justice suffers due to the uneven application of law owing to a highly politicized referral system of the UN Security Council.

Something similar to what I have argued in my paper titled “A Synergistic Failure between the UN Security Council and the International Criminal Court”.

This paper is divided into three parts – Part I deals with the provisions relating to the relationship between the UNSC and the ICC as has been envisaged in the Rome Statute of the ICC; Part II deals with the practical situations when the
relationship has been tested or powers have been exercised by the UNSC in respect of international peace and security vis-a-vis the ICC; Part III examines the successes or failures of the relationship between the two international bodies and will explore the possibility of whether the synergy between the bodies can be enhanced and made more effective.

ICC Prosecutor confident about definite charges against Libya

The Office of the Prosecutor at the ICC has concluded its preliminary investigation in the alleged War Crimes that have been committed in Libya during the recent crises. It has requested the Court to grant warrants of arrests being confident that definite charges of war crimes can be made out against those responsible, especially higher officials in the Libyan regime. (see)

Identifying two main types of incidents:

  1. Security forces allegedly attacking unarmed civilians constituting crimes against humanity.
  2. The existence of an armed conflict with alleged war crimes as well as other crimes against humanity that appear to have been committed by different parties.

The Prosecutor also said that rape and abuse of women was used as a weapon during the persecution. The civilians were also subject to many other types of persecutions. This led them to believe that Crimes against Humanity have indeed been committed against people by the Qaddafi regime.

The response of the Office of the Prosecutor has been commendable, especially in conducting the investigation promptly and gathering evidence swiftly. With the help of many States and other agencies, like the UN  International  Commission of Inquiry on Libya (See this and this).

A statement was made and a report was submitted (lays down the issues of jurisdiction, action taken, modes of investigation, charges etc.) to the UN Security Council pursuant to Resolution 1970 (2011) regarding the status of the Libya investigation. The Press release can be found here.

I still think the issue of co-operation by Libya, as it is not a party to the Rome Statute, remains bothersome. The previous such reference by UNSC where the situation in Darfur, Sudan led to implication of President Omar Al Bashir, has not reached finality yet as he still remains at large. The question is, despite issue of warrants and clinching evidence against Qaddafi, will he be brought to book successfully?

UN Security Council refers Libya to International Criminal Court

On 26 February 2011, the United Nations Security Council by Resolution 1970 (2011), along with imposing an arms embargo and freezing assets of members associated with the Qaddafi regime, referred the humanitarian crisis of systematic attacks and human rights violations of the Libyan population, to the International Criminal Court.

The current status of the case is that it was assigned to the ICC Pre-Trial Chamber I on March 7 following the announcement of commencement of  the investigation on March 3, 2011.

The reference is justified under Article 16 of the Rome Statute of the ICC where the UNSC can refer a dispute to the Prosecutor. It is surprising that this has been done even though Libya is not a state party to the Rome Statute.(see even the USA). This raises many issues regarding the Jurisdiction and Admissibility of any proceedings against the Libyan Arab Jamahiriya. Also, if Libya will be bound to accept any rulings by the ICC, as the dispute was referred by the UNSC which can make binding declarations.

See the excellent post by War and Law throwing some light on this reference here.

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