Libya Is Real Progress By And For The International Criminal Court When Compared To All Previous Formal I.C.C. Investigations

Last week Libya became the subject of official investigation by the International Criminal Court, the sixth since the court’s inception in 2002. There are three ways in which an investigation can be initiated by the Office of The Prosecutor; referral of a situation by a state party of the Rome Statute, referral from the U.N. Security Council, or a proprio motu decision by the OTP itself. Once a referral is received or a proprio motu decision is made, a preliminary investigation is conducted to verify that there is a reasonable basis to proceed with an official investigation. The investigation in Libya was preceded by investigations into situations in Kenya, Darfur – Sudan, the Central African Republic, Uganda, and the Democratic Republic of the Congo. The expeditiousness and unanimity of the U.N. Security Council referral of Libya to the International Criminal Court reverberated as important political progress and an advance toward the formalization of the I.C.C.’s legitimacy. But the rapidity of events from state complicit violent incidents in Libya to formal I.C.C. investigation marks a new precedent and may be even more salient for the progression of international justice.

The first two formal investigations launched by the I.C.C. – in 2004 into the situations in the Democratic Republic of Congo, and Uganda – addressed violence that, by the time of state party referrals to the OTP, had gone on for over a decade. Even then it took two and six months respectively to proceed from state party referral to the commencement of formal I.C.C. investigation, investigations only authorized to investigate crimes occurring after July 1st, 2002, the date the Rome Statute of the International Criminal Court came into force. The Situation in the DRC was referred to the OTP on April 19th, 2004; the decision to open an investigation was made on June 23rd of that same year. The situation in Uganda was referred to the OTP on January 29th 2004; and did not come under formal investigation until July 29th, 2004 – meanwhile some of the gravest atrocities ever committed in the conflict between the Lord’s Resistance Army and the government of Uganda occurred in February of that year, nearly a decade after civil war had broken out.

The next investigations undertaken by the I.C.C. dramatically decreased the time from state complicit violent incidents to referral to the I.C.C. from 10+ years to two-two and a half years. The first U.N. Security Council referral to the I.C.C. was made on March 31st, 2005 regarding the genocidal campaign in the Darfur region of Sudan that occurred beginning in March, 2003. The situation in the Central African Republic was referred to the I.C.C. by C.A.R on January 7th, 2005 regarding violence committed by forces of the Movement for the Liberation of Congo in 2002 and 2003. The situation in Darfur proceeded to formal investigation within two and a half months on June 6th, 2005; while it took another two and a half years for the situation in C.A.R. to proceed to formal investigation on May 22nd, 2007.

The OTP made its first proprio motu decision on November 6th, 2009 to launch a formal investigation into post-election violence occurring in Kenya at the end of 2007 into the beginning months of 2008. This followed the precedent set by the situation in Darfur of the I.C.C. needing at least two years to proceed from even the most heinous state initiated atrocities to a formal investigation. This precedent was shattered by the response to the situation in Libya by the international community and the I.C.C.

The first incidents of violence in Libya under current investigation occurred on February 15th, 2011 during anti-Qaddafi protests. The U.N. Security Council voted unanimously to refer the situation in Libya to the I.C.C. (also an important precedent) for an informal investigation on February 26th – less than ten days after the initial violence. Just five days later on March 3rd the Office of the Prosecutor announced the launching of an official investigation of the Libyan Arab Jamahiriya. The time frame of just over two weeks – sixteen days – makes the situation in Libya, by far, the quickest of all situations under formal investigation by the I.C.C to proceed from state complicit violence to formal I.C.C. investigation. More importantly it marks the first ‘real time’ response by the international community, and the I.C.C. specifically, to occurrences of crimes against humanity.

The response to the situation in Libya could possibly change the way the international system works regarding international criminal justice. It is possible that this will mark a transition of the role that the I.C.C. plays in international criminal justice from one of primarily ending impunity for perpetrators of past war crimes and deterring future would-be war criminals, to actually stopping war crimes during their commission and actively preventing crimes against humanity in progress. Stronger cooperation and enforcement collaboration among nations will be necessary for this to occur, and it is likely that the progress made by the response to the situation in Libya was due to a confluence of political circumstances favorable to such an outcome rather than being due to the commitment of the international community to international criminal justice and to the institution of the I.C.C. Still, the progress made to this point is undeniable when compared with all previous situations under formal investigation by the I.C.C. The real test will come when the arrest warrants for Qaddafi and his henchmen are issued and when they are brought to final justice in The Hague.