On the 26th of February 2011 the United Nations Security Council (UNSC) unanimously passed Resolution 1970 (2011), referring the `situation` in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of UNSC measures directed at the Libyan regime, including a travel ban and asset freezes for Libyan leader Muammar Gaddafi and his associates, as well as an arms embargo.

It is the first concrete action by the UNSC in respect of the events that began earlier in February, as increasing reports of widespread attacks on civilians in Libya confirmed the lengths to which Gaddafi will go to cling to power. It is also fitting that Gaddafi – who has recently been central to undermining the ICC through his political influence in the African Union – should now find his regime’s crimes referred to the Court by all members of the UNSC, including Africa’s powerhouses South Africa and Nigeria.

As with all the other matters currently before the Court, the target of the investigation is an African country, which critics of the ICC will be quick to point out. Like the case of Darfur, Sudan, the investigation will have to take place in respect of a state that is not a party to the Rome Statute of the ICC and despite the government under investigation being overtly hostile to the proceedings. For these reasons, sceptics are likely to conclude that it will result in the same difficulties that have left the Court politically isolated in Africa. Moreover, arguments abound that the ICC arrest warrants might negatively impact efforts towards re-establishing peace in Libya, including the AU-sponsored peace talks that are currently underway.

And so the Libyan referral finds itself situated within the broader Africa - ICC narrative that is underpinned by perceptions that the Court has an unhealthy preoccupation with the continent. While the Court’s African focus is in large part explained by the invitations extended to it by African states for assistance in tackling mass crimes, this perceived African bias has drawn much criticism from the AU. The relationship between the AU and the ICC has suffered as a result. It is thus telling that all three African states on the UNSC voted in support of the Libyan deferral. Regardless, one can assume that Libya’s repressive leaders – like the powerful elites in Kenya and Sudan – will nevertheless attempt to undermine the ICC’s efforts by exploiting the perceptions about the Court’s African workload.

There are many good reasons why all 15 members of the UNSC voted for the referral. The early involvement of the Court enables the prospect of justice to deter future atrocities, and alter the conflict dynamics in a game-changing manner. It is encouraging therefore that the Court responded so quickly. On 16 May 2011, Luis Moreno-Ocampo, the ICC Prosecutor disclosed that according to the Office of the Prosecutor (OTP), Gaddafi, his son Saif al-Islam, and intelligence chief Abdullah al-Sanussi, bear the greatest responsibility for ‘widespread and systematic attacks’ on civilians that amount to crimes against humanity and war crimes. It is now for the ICC judges to decide whether or not to issue warrants for their arrest.

Regarding the role of justice in securing peace, it is now well established that the prosecution of senior leaders helps to ensure justice and can – in the long run – help end conflict. As highlighted by James Goldston, executive director of the Open Society Justice Initiative, in a recent article, the indictment by the UN-backed International Criminal Tribunal for the former Yugoslavia (ICTY) of Bosnian Serb leader Radovan Karadzic and his military chief, General Ratko Mladic on the eve of the Dayton peace talks did not detract from the negotiations. In fact the charges may have actually helped mediators ensure successful negotiations between the Bosnians, Serbs and Croats. The same argument holds in relation to Yugoslav President Slobodan Milosevic. In May 1999, the ICTY’s indictment of Milosevic raised concerns that a peace deal would not be reached. Nevertheless, on 11 June 1999 the war ended with Milosevic accepting the terms of the peace negotiations. After the September 2000 elections Milosevic lost power and was handed over to the ICTY in June 2001. Similarly, African leaders responded to the indictment of Charles Taylor by the Special Court for Sierra Leone (SCSL) with great indignation. They argued that the judicial process would negatively impact on potential peace in both Sierra Leone and Liberia. Nevertheless, both countries are now at peace and Charles Taylor’s trial at the SCSL is nearing completion.

Beyond these general arguments about the role of international justice in Africa, the ICC’s involvement in Libya should, however, not be conflated with other developments stemming from the conflict. Indeed, three weeks after the Libyan referral to the ICC by the UNSC under Resolution 1970, the Security Council on 17 March adopted Resolution 1973 on the situation in Libya. Ten UNSC members voted for the resolution (Bosnia and Herzegovina, Colombia, Gabon, Lebanon, Nigeria, Portugal, South Africa, and permanent members France, the United Kingdom, and the United States). Five (Brazil, Germany and India, and permanent members China and Russia) abstained, with none opposed. The resolution formed the legal basis for military intervention in the Libyan civil war, demanding ‘an immediate ceasefire’ and authorising the international community to establish a no-fly zone and to use all means necessary short of foreign occupation to protect civilians.

Military intervention in Libya began on 19 March, as fighter jets of the French Air Force destroyed several pro-Gaddafi vehicles advancing on Benghazi, a rebel stronghold. On 31 March, NATO assumed command of the no-fly zone, while air strikes against ground targets remain in the hands of the coalition. The intervention succeeded in preventing pro-Gaddafi forces from capturing Benghazi, and is ongoing. Aside from the fact that African states – including South Africa – voted in favour of Resolution 1973, there has been a recent chorus of African government voices attempting to distance themselves from the Resolution, which they believe is being misinterpreted and abused by NATO and coalition countries.

The situation in Libya remains dire and Gaddafi appears intent on entrenching himself through violence and repression. It is thus likely that the ICC will continue its focus on these abuses. This focus is appropriate, both in the fight for accountability for these crimes, and as a public declaration that Gaddafi’s violent defiance of his own peoples’ wishes will not be ignored. In short, the decision to involve the ICC in Libya through UNSC 1970 was and remains correct. It is important that whatever criticisms African leaders now raise against UNSC Resolution 1973 and its authorisation of force in Libya, not be allowed to detract and distract from the important role that the ICC has rightly been asked to play.

In short, the baby of the ICC must be kept in the bathwater that is Libya’s ongoing humanitarian and human rights nightmare. For that to be achieved it will be vital for the international community and civil society to guard against cynical conflation of criticisms against coalition and NATO efforts at enforcing Resolution 1973 on the one hand, and the ICC’s efforts to investigate and prosecute serious international crimes on the other.

Written by Anton du Plessis, Programme Head, International Crime in Africa Programme, ISS Pretoria Office