The Pre-Trial Chamber of the International Criminal Court (ICC) authorised warrants of arrest for the capture of Colonel Muammar Gaddafi, his son Saif al-Islam, and Libyan intelligence chief Abdullah al-Senussi on June 27, 2011. The matter had been referred to the ICC by the United Nations Security Council (UNSC) for investigation and action. For the African Union (AU), these arrest warrants are of major concern, especially in respect of Gaddafi, as the AU has repeatedly stated that only political solutions and an ‘inclusive’ process can bring peace to Libya, and it is alleged that the ICC’s interventions would not allow this. The position of the AU is somewhat problematic, as 32 of its members are also signatories of the Rome Statute and therefore members of the ICC. In essence, the AU has therefore demanded of its members not to comply with their international law obligations. Of further concern is the fact that the South African government strongly supports the position of the AU on Libya, although the reasons for this position are not clear. In this contribution the position of the AU and South Africa is critically analysed in order to illustrate the misguided nature of the accusations that the ICC is acting under the influence of Western dictates. Although the issue of UNSC Resolutions 1970 and 1973 and the North Atlantic Treaty Organization (NATO) interventions have no doubt influenced the decisions of the AU, it is further argued that the two matters should be dealt with separately, as the ICC is an independent international institution that is carrying out its obligations in terms of the provisions of the Rome Statute, either at the request of conflictaffected member states, or referrals from the UNSC, on which South Africa is serving a second term as a non-permanent member.

This policy brief is written by Narnia Bohler-Muller of the Africa Institute of South Africa.