The UN’s referral of the situation in Libya sharply restricted the temporal jurisdiction of the ICC. The referral says the Court can have jurisdiction only over crimes committed in Libya since February 15th 2011. In a recent post, I argued that this would bias the potential for political accountability as well as the historical record, particularly in relation to relationships between Western states and Gaddafi.
ICC Prosecutor Luis Moreno-Ocampo also wanted a more expansive jurisdiction, but for different reasons. Tucked away in an article by Al Arabiya about Egypt’s cooperation with the ICC on the investigation of events in Libya, is the following:
“Ocampo had hoped that Security Council resolution 1970 mandate would allow him to investigate crimes in Libya since 2002, rather than Feb. 15, 2011, Al Arabiya sources said.
This expanded time frame that would have allowed him, according to the sources, to show a pattern in the Libyan regime’s behavior.”
Where is this information in mainstream western media? The lack of critical thinking on Resolution 1970 has been frustrating. The role of the ICC been portrayed through a predictable and frustratingly artificial dichotomy: either the referral marks an incredible moment in international cooperation and commitment to international law (see here and here) or it will give Gaddafi more reasons to stay in power and continue killing Libyan civilians (see here, here, and here).
Moreno-Ocampo’s argument needs analysis, separate from the question of the politically-oriented choice of jurisdiction by the UN Security Council. It points to the fact that a restricted jurisdiction is precarious both in terms of justice as well as the law. Presumably, Moreno-Ocampo wants to establish that any of the alleged crimes against humanity committed in Libya are part of a systematic pattern of violence and criminal activity. If any Libyan officials are ever brought to trial, this would no doubt help in the prosecution’s case. Unfortunately for the Court’s Prosecutor, this won’t be possible.
At a recent conference, one well-regarded Transitional Justice academic referred to Libya as a “poisoned chalice” for the ICC. How the referral affects the legitimacy of the Court can only be judged in the months and perhaps years to come, but it is, at the very least, important to consider the possibility that the politically inspired directives of Resolution 1970 are not necessarily a good thing for the Court or international criminal law in general.