The United Nations Security Council voted unanimously on Saturday to refer Libyan autocrat Moammar Gadhafi to the International Criminal Court for “allegations of widespread or systematic attacks against the civilian population” of his country, according to the ICC.
The vote on Resolution 1970 was only the second time in history that the Security Council had referred a case of possible “crimes against humanity” to the ICC, after Sudan in 2005, and it was the first time the Council had done so unanimously. Many activists interpreted the decision as a sign of the court’s renewed relevance, after years of being shunned by major powers liked the United States and China.
Buried within the text of the resolution, however, was a caveat of sorts: The ICC would have to pay for the investigation, and any prosecution that might follow, by itself.
The last paragraph of the section on “ICC Referral” states that “none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations.” The resolution adds: “Such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily.”
That provision exempts three of the Security Council’s five permanent members — the U.S., Russia and China — from having to pay for the investigation into Gadhafi’s alleged crimes because they have chosen not to ratify the Rome Statute, which governs the ICC. The decision is notable because an investigation into acts of abuse by Libyan authorities could prove to be a costly endeavor.
The ICC prosecutor, Luis Moreno Ocampo, now has two months to collect evidence — images, footage and other documentation of violence — and coordinate with the Libyan military and security forces before reporting back to the Security Council. His task will be, in part, to understand the command structure of the Libyan security forces and decide who might be responsible for the civilian deaths, which may number in the thousands, according to estimates by international officials.
Winning the cooperation of Libyan military officials, however, may be difficult. Gadhafi has denied in interviews that the protests occurred at all, and insists that he still has control over the country. Even if Ocampo does complete his investigation and obtain an arrest warrant, executing it will be tricky. Sudanese President Omar Al-Bashir was indicted on charges of genocide by the ICC in 2008, but has refused to cooperate with the court and remains in power in Sudan.
To some, the clause regarding expenses was a reminder of how difficult it has been for the ICC to win legitimacy in the eyes of the international community. Ocampo has made repeated pleas to the Security Council for the resources necessary to execute his arrest warrant against Al-Bashir, for example, but has been rebuffed every time.
In a column for The Huffington Post, Diane Marie Amann, director of the California International Law Center at UC Davis, called the clause a “cause for concern” and a sign of “lingering reluctances regarding the ICC,” especially among the U.S. and other major powers.
In an interview with Need to Know, Roger Clark, a professor of international criminal law at Rutgers University who was involved in the negotiations to create the ICC, said the most likely outcome was that the court’s strongest supporters, such as Germany and Japan, would bear the cost of any investigation and eventual prosecution of Gadhafi. “The Europeans and Japanese are going to pay for it,” Clark said. “They’re the biggest believers.”
Despite the caveat, Clark said the vote to refer Gadhafi to the war crimes tribunal was ultimately a strong statement of the international community’s opposition to the Libyan autocrat, given that several current members of the Security Council had maintained uneasy alliances with him before the uprising.
“It’s another nail in his coffin,” Clark said. “They’re abandoning him.”