By Natasha Harrington, pupil barrister (Essex Court Chambers, London)

On 27th June 2011, the Pre-trial Chamber of the International Criminal Court (ICC) issued arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (see here). The Court found reasonable grounds to believe that the three have committed crimes against humanity by murder contrary to article 7(1)(a) and persecution of opponents to the Gaddafi regime contrary to article 7(1)(h) of the Rome Statute.

Muammar Gaddafi has become the second serving head of state, following President Al-Basheer of the Sudan, to face prosecution by the ICC, where state officials are not immune from prosecution. Libya is not a State Party to the Rome Statute. Therefore, the jurisdiction of the Court is based on United Nations Security Council Resolution 1970, referring the situation in Libya to the ICC as of 15th February 2011, in accordance with article 13(b) of the Rome Statute.

In contrast, no investigation or charges have been brought against any members of the National Transitional Council (NTC), despite a report from the U.N. High Commissioner for Human Rights that cited evidence of serious abuses by NTC forces. Nevertheless, Gaddafi has made clear his intention to use the Libyan State courts for this purpose, and to try the NATO member states for war crimes.

Justice 1: 0 Peace?

If Gaddafi and his close associates do not relinquish power and slip away it may take NATO and the NTC many more weeks and months to remove them, and in the process Libyan civilians and the unity of their country will suffer the most. Many are now questioning whether the ICC arrest warrants are a triumph for justice at the expense of peace because, in the words of the Italian Foreign Minister, once a warrant is issued ‘from that moment on an exit from power or from the country will no longer be imaginable’.

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