Almost a month after the United Nations Security Council unanimously referred Libya to the ICC, Western powers are enforcing a no-fly zone over the country to protect civilians under attack from troops loyal to Muammar Gaddafi.
“Do I see that there will come a day when individuals responsible for this kind of conduct are in the ICC? Yes, it is not a question of if, it’s a question of when,” Stephen Rapp, the former chief prosecutor at the U.N.-backed Sierra Leone court, told Reuters on Friday.
ICC prosecutor Luis Moreno-Ocampo, who has said Gaddafi, his sons and key aides could be prosecuted for the violence, said on Thursday he may seek arrest warrants by the end of May.
“We would have to see what the situation was at that time, but I would expect in this case very strong support for ensuring those arrest warrants were executed,” Rapp said.
Although some analysts warn the West risks becoming caught up in a drawn-out civil war in Libya, Rapp pointed to the arrests of Serbian President Slobodan Milosevic and former Liberian President Charles Taylor to prove arrests can be made.
Both leaders were later placed on trial in The Hague.
Confronted by ethnic cleansing in Kosovo in 1999, the International Criminal Tribunal for the former Yugoslavia (ICTY) indicted Milosevic in May 1999 while a NATO bombing campaign was in full swing.
“At the time it was not clear how that (arrest warrant) would be executed,” Rapp said, but added that Milosevic was later arrested in April 2001. “That did not mean he was arrested immediately, but it clearly signalled that there was going to be consequences in terms of justice in the future.”
In Taylor’s case, Rapp said when the warrant was unsealed in June 2003, Taylor was still in power in Liberia, but “various pressures and efforts” saw Taylor arrested in March 2006 for crimes committed in Sierra Leone’s 1991-2002 civil war.
DETERRING CRIMES
The ICC, the world’s first permanent war crimes court, has battled against a lack of state support, with the United States, Russia and China refusing to sign up to the court and it has struggled to have suspects arrested.
Sudanese President Omar Hassan al-Bashir, for example, is still at large after being charged with genocide in Darfur and some African states have simply refused to arrest him.
Recently the U.S. has started to re-engage with the court, attending recent ICC meetings as an observer.
Rapp said the unanimous Security Council referral of Libya represented a global view the ICC was a key player to achieve accountability for serious human rights violations.
He said the U.S. decision to back the referral re-emphasised a point made by the administration of U.S. President Barack Obama that Washington sees the ICC as a court of last resort which “has a place in ensuring there is accountability.”
Rapp added the swift referral and resulting ICC investigation had sent a deterrent signal to Gaddafi loyalists.
“Even if you don’t deter him (Gaddafi), you deter others,” he said. “There is certainly evidence that individuals are declining to act on Gaddafi’s side to commit these crimes, or to be complicit in them and the numbers of people committing atrocities against their own people are diminishing.”
But he warned that rebels fighting Gaddafi could also be prosecuted for war crimes at the ICC if they commit, for example, reprisal killings of captured snipers.
Forces acting to impose the no fly zone will not be liable to ICC prosecution, however, but would instead face trial in their own country if they commit intentional crimes against civilians, Rapp said.
Referring to the waves of pro-democracy movements reshaping the Arab and North African political landscape as “exciting times,” Rapp said the deterrent signal from the referral and ICC probe could also have an effect outside of Libya.
“Whether it encourages protests that depends on what grievances there are in a particular country, but it discourages reaction to democratic awakening through official violence,” Rapp said.