On 27 June, the judges of Pre-trial Chamber 1 of the International Criminal Court (ICC) issued arrest warrants for Libyan leader Muammar Gaddafi​, his son Saif al-Islam, and intelligence chief Abdullah al-Senussi, for alleged crimes against humanity committed in Libya since mid-February this year. The decision is a significant but not unexpected development in a process begun by the UN Security Council when it passed Resolution 1970 (2011) on 26 February 2011 which, among other things, referred the situation in Libya to the ICC.

The judges’ ruling was widely welcomed. However, for some African leaders and the African Union (AU) the arrest warrants are of major concern. At its 17th Assembly on 1 July, the AU decided that because the Gaddafi warrant complicates efforts to negotiate a political solution in Libya, member states would not cooperate with the ICC in Gaddafi’s arrest and surrender. South Africa’s President Jacob Zuma, who hosted a meeting of the AU’s High Level Ad Hoc Committee on Libya the day before the warrants were announced, expressed ‘extreme disappointment’ with the timing of the ICC’s decision.

Relations between the AU and the ICC have been frosty for some time. Added to this is the opposition by many African leaders to the NATO-led military operation in Libya authorised by UN Security Council Resolution 1973. The AU has also repeatedly stated that only political solutions can bring peace to Libya – a position that explains the tendency on the continent to separate efforts to achieve justice and accountability from those aimed at negotiating political settlements.

Criticisms of ICC action in Libya overlook the context within which Resolution 1970 was passed, and the fact that justice was an explicit part of the international community’s response to the unfolding crisis. All 15 members of the UN Security Council –­ including Gabon, Nigeria and South Africa – voted in favour of Resolution 1970. The decision was based on widespread expressions of concern about government led attacks on civilians from the Organisation of the Islamic Conference, the Council of the League of Arab States, the AU and the UN’s Human Rights Council. Libyan diplomats who had distanced themselves from their government also called for the ICC’s intervention.

Five months down the line, the urgency and unanimity that prevailed in the international community is easily forgotten. At the time, UN Secretary-General Ban Ki-moon welcomed the Security Council’s firm action stating that although it would not, by itself, end the violence and repression, it was a clear expression of the will of a ‘united community of nations’. Security Council members expressed solidarity with the people of Libya, hoping that their ‘swift and decisive’ intervention would help bring them hope and relief.

The ICC did indeed act swiftly. After completing the preliminary investigations, the prosecutor requested the pre-trial chamber to issue arrest warrants for Gaddafi and his co-accused on 16 May. Less than two months later the warrants were confirmed. This prompt action has drawn criticism for being poorly timed. Looking back, it is arguably some of the decision makers who agreed to vote for Resolution 1970 that miscalculated the timing of events, rather than the ICC.

Coming so soon after the long-time presidents of Tunisia and Egypt were toppled within a month and 18 days respectively by popular uprisings, some states supporting ICC action in Libya no doubt anticipated that Gaddafi would also soon be ousted. The odds were that with one of Africa’s longest serving rulers removed by his own people, those voting in favour of ICC intervention would find themselves on the right side of history, and the ICC could then proceed with its work in a relatively uncomplicated political environment. Instead, the conflict has dragged on for five months (and counting) with little prospect of resolution. The infamous words of Gaddafi`s son, Saif al-Islam, on 21 February should have provided an early portent that events in Libya might take a different course to those of its neighbours: ‘Libya is at a crossroads. If we do not agree today on reforms ... rivers of blood will run through Libya … We will take up arms ... we will fight to the last bullet … Libya is not Egypt, it is not Tunisia’.

As the humanitarian cost of the crisis has mounted, so too has pressure to find a political settlement. With negotiations now the priority, some in the international community, including no doubt the African states that voted in favour of ICC intervention, see Resolution 1970 as an impediment rather than an expression of ‘swift and decisive’ action on behalf of the Libyan people.

Resolution 1970 did however make it clear, from the outset, that justice and accountability would be central to the international community’s response. Justice cannot now be set aside because investigations reveal that Libya’s leader may be responsible for the attacks on civilians. Human Rights Watch’s Richard Dicker cautions that ‘Justice, to be credible, must run its independent course’. As an independent judicial institution, the work of the ICC and its pre-trial chamber in particular, is not something that can or should be influenced from outside.

Ways need to be found for the ICC to work alongside diplomatic (political) and humanitarian efforts to resolve the crisis. To date, efforts by the UN Secretary General’s Special Envoy for Libya, the AU committee on Libya, the Libya Contact Group, and individual states have not succeeded in breaking the military and political deadlock. Statements by both sides to the conflict show that the stalemate between Gaddafi and the opposition National Transitional Council pre-dates the issuing of ICC arrest warrants. It is moreover unlikely that after ruling for 42 years, a dictator who is as brazen as Gaddafi about the lengths he will go to remain in power, and who has led Africa’s charge against the ICC, would feel cornered by the court’s indictment.

When deciding how to respond, the starting point for the 31 African ICC states parties should be that in issuing the warrant for Gaddafi, the ICC acted independently in accordance with its political mandate from the Security Council and the legal provisions of the Rome Statute. Africa and the AU are right to be concerned about developments that limit opportunities for resolving the conflict in Libya. But can peace and stability be achieved by setting aside justice to appease one of the continent’s longest serving dictators who is wanted by the ICC for allegedly directing violence against his citizens, and has repeatedly threatened to fight to the last man, woman and bullet? If Gaddafi now finds himself in a corner, this should be attributed, first and foremost, to his regime’s actions since mid-February. In direct response to these actions, UN Security Council Resolution 1970 has deliberately aimed to undermine Gaddafi’s legitimacy and isolate his regime through an ICC referral, travel bans, assets freezes and an arms embargo in the hope that these measures will help end his government’s repression of the Libyan people.

Written by Antoinette Louw, Senior research fellow, International Crime in Africa Programme, ISS Pretoria Office