The International Criminal Court (the ICC or the Court, used interchangeably) is a permanent international institution with jurisdiction to prosecute the most heinous international crimes. It has become the embodiment of International Criminal Justice (ICJ) for our age.Footnote 1 The guiding philosophy of the ICC is articulated in Paragraphs 3 to 5 of the preamble to its Statute, which states that international crimes are “a threat to the peace and security of the world”, and the Court aims to contribute to “ending impunity” and the “prevention of those crimes”.Footnote 2 However, these goals do not always coincide and need legal evaluation in each case. Unfortunately, there has been no comprehensive attempt to evaluate how these conflicting goals should be applied or which needs to be prioritized.
In this regard, the Court is entrenched in the unequal contemporary world with discrepancies between developed/developing states and stable/unstable ones. Hence, the ICC is prone to exacerbate these existing discrepancies; that is, it might create or consolidate more profound distinctions between states and disintegrate the international community and the international legal system altogether.Footnote 3 Accordingly, the “criminalization” of international politics might strengthen the hand of those in a position to determine which behaviours count as international crimes and identify those who can be referred to the policeFootnote 4 to address the danger of realpolitik hijacking the ICJ.Footnote 5 This scenario might readily occur in cases where the Security Council refers a situation to the ICC. In other words, intervention by the ICC as a supposed legally impartial and independent institution can reproduce an unfair and contested “international distribution of power under the guise of judicializing it”.Footnote 6 Even worse, the referral may result in a failed/weak state situation due to the limitations of current international law. The ICC has recently been criticized for its proactive application of its jurisdiction and the negative impact of its attempt at conflict resolution.Footnote 7
The ICC's architecture is supposed to be based on established principles under the ICJ. However, the complicated nature of international law as a special legal system depends on adopting a cognizant and nuanced approach. It is against this backdrop that the present research is written. This research explores the judicial intervention of the ICC in the Libyan crises, from the beginning to the most recent developments of the post-Gaddafi era. The focus on Libya is because this situation is the second and the most recent referral of the Security Council to the Court; that is, where the ICC had to function alongside a protracted armed conflict and where the Court's intervention was criticized for being an accomplice to the realpolitik that created the current Libyan chaos. Therefore, the primary questions are (1) how does the case of Libya contribute to the evolving jurisprudence of the Court and, relatedly, (2) how must the Court respond to the abovementioned critiques while enforcing its ICJ promise to avoid unruly realpolitik?
The remainder of the present research is organized to address these questions. Section I examines the case referral and how military and judicial interventions were engaged in the crisis. Section II investigates the regime change in Libya, its nature and consequences, and how the Court's behaviour impacted it. Section III, as the central part of this work, deals with the problem of the Court's independence and provides legal suggestions that the Court could apply to overcome legal lacunae in cases like Libya. Finally, the research findings will conclude and be prescribed for the “Libyan case” and the future of the Court.
I. LIBYAN CRISIS AND REFERRAL
A. The Referral's Characteristics
On 26 February 2011, after the violent reaction of the Libyan government to the Libyans’ uprising, the Security Council of the United Nations (UN) adopted Resolution 1970 by consensus. According to this Resolution, under Article 13(b) of the Rome Statute, the situation in Libya was referred to the ICC to investigate the alleged crimes.Footnote 8 On 17 March, the judicial intervention was accompanied by military intervention authorized through Resolution 1973, reaffirming the referral.Footnote 9 Subsequently, the Prosecutor completed the preliminary examination and opened the formal investigation in March.Footnote 10 Finally, on 16 May, Moreno-Ocampo, the then ICC Prosecutor, asked the Court to issue three arrest warrants. On 27 June, the Pre-Trial Chamber (PTC) approved warrants against all three named persons: Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah Senussi.Footnote 11
The referral was unique for several reasons. First, the international community's reaction was surprisingly fast, given that it was triggered less than two months after the Libyan uprising. Second, it was adopted by consensus, with the United States (US) – one of the strongest opponents of the ICC – voting for it. Also, two other non-members and opponents of the ICC, well-known for their advocacy of the principle of sovereignty/non-interventionism, namely China and Russia, voted in favour. Third, on 17 March 2011, judicial intervention was accompanied by military intervention authorized by the Security Council.Footnote 12 Fourth, the Court expeditiously initiated a formal investigation two months after the referral. In contrast, according to the records of the Court, preliminary investigations usually take several months or even years: to compare the case of Libya with that of Sudan, where another Security Council referral was warranted, the Court took two years to move from accepting it to issuing the arrest warrants.Footnote 13
B. Negotiation Attempts and Instrumentalization
Simultaneously, several peace negotiation initiatives were designed to find a solution to the crisis in Libya but, unfortunately, this track of international interference began even before Resolution 1973,Footnote 14 whose provision required a peaceful settlement of the Libyan conflictFootnote 15 and continued for a few weeks before the fall of Tripoli in August of that year.
The UN Secretary-General appointed Al-Khatib, the former Jordanian foreign minister, to explore ways of settling the Libyan Crisis. He travelled to Libya on 14 March 2011, met the Libyan Foreign Minister, Kusa, and established a line of communication with Saif al-Islam. Unfortunately, his failed attempt happened after the adoption of Resolution 1970 and before Resolution 1973.Footnote 16 More vigorously, in April 2011, the African Union (AU) initiated efforts to resolve the conflict, keeping in mind that the Prosecutor began its formal investigation in March. To do so, a five-member AU High-Level Panel, led by the President of South Africa, travelled to Libya to broker a peace agreement to end the crisis.Footnote 17 The AU-led initiative requested: (i) the cessation of hostilities, including intervention led by the North Atlantic Treaty Organization (NATO); (ii) the unimpeded delivery of humanitarian assistance; (iii) the protection of foreign nationals; and (iv) an official peace negotiation between the government of Gaddafi and the Libyan National Transitional Council (NTC) to implement the necessary political reform.Footnote 18 On 11 April, the AU panel announced that Gaddafi had accepted the AU road map.Footnote 19 However, the National Transitional Council (NTC) rejected the AU's plan on the same day. Abdul-Jalil, former chair of the NTC, described why the NTC rejected the AU road map: “The initiative does not include the departure of Gaddafi and his sons from the Libyan political scene, therefore, it is outdated.”Footnote 20 Their message was crystal clear – they wanted outright regime change; that is, the removal of Gaddafi and his family from the Libyan government. To make matters worse, according to the Libyan politician Ahmad Gebreel, the NATO powers failed to support the AU's initiative. They also threatened the NTC by withdrawing their support from the Libyan opposition in case they wanted to accept the AU's plan.Footnote 21 Conversely, Gaddafi did not indicate that he would resign as a precondition of the peace negotiation.Footnote 22 Therefore, the main obstacle to the peace negotiation's advancement was disagreement about Gaddafi's fate.Footnote 23
On 26 May, just days after the request by the ICC Prosecutor for the issuance of arrest warrants, the Libyan government offered its most advanced initiative for a ceasefire; this required formal talks with the NTC, forming a constitutional government, and compensating the victims of the conflict. Interestingly, Gaddafi's name was absent from this new ceasefire offer. Instead, the government officials were “trying to recast the despot as a figure who will not play a prominent role in the country's affairs after the fighting stops”.Footnote 24 Unfortunately, this attempt also failed because the interveners and the NTC never took it seriously.
With regard to this train of events, gradually, after issuing three arrest warrants, numerous states, including some members of the Court, reportedly offered safe exile to Gaddafi to resolve and terminate the prolonged conflict. Western states, in particular, were searching for a non-ICC recipient member state.Footnote 25 In a round of attempts to ignite peace negotiations between the NTC and the Gaddafi government, after the indictments were warranted at the end of June, the AU offered Gaddafi exile.Footnote 26 It was reported that NATO powers such as France and Britain had privately approved that Gaddafi could go into exile in a non-ICC member state.Footnote 27 In another round of attempts in July, led by Turkey, it was reported that some NATO powers had privately acknowledged that they would support Gaddafi's exile to a non-ICC member state.Footnote 28 Finally, in its Statement on Libya on 8 June 2011 – a few weeks after the Prosecutor requested three arrest warrants – NATO declared its regime change approach: “Time is working against Qadhafi, who has clearly lost all legitimacy and therefore needs to step down. There is no future for a regime that has systematically threatened and attacked its own population.” The statement also mentioned the significance of different military, political, and economic measures to help end attacks on civilians. Accordingly, the possibility of an ICC contribution was set aside.Footnote 29
Several commentators claimed that the ICC's intervention would make Libya's transition to peace unlikely. They proclaimed that the Court's biased approach would make Gaddafi determined to “fight to the death and take a lot of people down with him”,Footnote 30 that the ICC “may have perpetuated, rather than ended, crimes”,Footnote 31 and that Libya was mired “in a civil war in large part because of Gaddafi's international prosecution”.Footnote 32 This concern became more acute when it appeared increasingly unlikely that the conflict would be ended quickly and the ICC's warrants would reinforce a military and political deadlock.Footnote 33 On the other hand, according to close confidants of Gaddafi, “he felt trapped after the ICC issued arrest warrants and did not see any other option than to continue fighting”.Footnote 34 In July 2011, the AU – in an attempt to deal with the deadlock in which the ICC's intervention was one undeniable factor – officially requested the Security Council to activate the provision of Article 16 of the Rome Statute to defer the ICC's process on Libya “in the interest of justice as well as peace”.Footnote 35 By that point, however, the request never gained the momentum of the international community due to its absolute rejection, this time by, among others, international human rights organizations.Footnote 36
During the summer, a “ripe moment” for a peaceful resolution of the conflict crystallized from June to early August. The NATO powers, specifically the US, were seriously considering the possibility of a peaceful settlement,Footnote 37 bearing in mind that they had rejected any chance of a peace negotiation just a few months ago. This change of position was because, in the mentioned period, the conflict between Gaddafi's army and the NTC fighters had reached a stalemate. It seemed like neither side would emerge victorious. Moreover, the country's East was mainly under the control of the NTC, while Gaddafi's loyalists held much of the West, including the capital, Tripoli. During this period, the international community should have appeared most keen to ignite negotiations.Footnote 38
Some final points are noteworthy to understand the ambivalence among intervening states towards the ICC. At the beginning of the military intervention, NATO supported the investigations conducted by the ICC. However, in the eyes of the interveners, the ICC should have focused solely on the Gaddafi government rather than other parties to the conflict: the NTC and NATO itself or their allies. The reason is that the permanent members of the Security Council leading the military intervention, namely the US, the United Kingdom (UK), and France, two of which are members of the ICC, generally interpret referrals as a method of political pressure rather than a method of ICJ commitment. Therefore, the general attitude among the interveners was to instrumentalize the Court to achieve their political purposes.Footnote 39 When the Court's investigations became a potential obstacle to pursuing such political goals, the Court's role in trying Gaddafi was largely abandoned in favour of ending the war as soon as possible.Footnote 40 This tendency among powerful states “to direct the court without committing to its success” has become reflective of several situations, including Libya.Footnote 41
C. The Aftermath
When the peace talks failed and were abandoned due to the ICC's intervention, there remained no other option than to follow the regime change strategy, favoured overwhelmingly by the NTC, and end the military intervention as soon as possible, which was increasingly favoured by NATO. This happened when Tripoli fell after a NATO-led coalition operation was launched in August; two months later, the rebels summarily executed Gaddafi himself. Afterwards, during the post-military intervention years, Libya witnessed a vying for power between rival blocks of Islamists, federalists, and minority claims, which resulted in the present-day chaos and paved the way for the sheltering of international terrorism.Footnote 42 The lack of central authority to incorporate these rivalries into a national political process undermined the NTC and the UN-backed Government of Libya (UNGL) of requisite sovereignty. As a result, Libya became a no man's land, and the UNGL lacked “effective control”, a hallmark of Westphalian sovereignty and statehood.Footnote 43 Meanwhile, more casualties and deaths were described as international crimes. According to one report, from 2012 until February 2020, a minimum of 611, or a maximum of 899, civilians were killed in all strikes by all belligerents. Also, regarding the total number of individuals (including combatants and those unknown), at least 1,820 persons were killed, with the highest estimate being 2,440. The number of civilians wounded during the same period ranges from 871 to 1,384 individuals.Footnote 44 Another report expressed an increase of 45 per cent in casualties between January and March 2020 compared with the fourth quarter of 2019. Further, the Libyan casualty rate had been inflating and deflating over more than a decade since the termination of military intervention.Footnote 45 Worse, the Human Rights Solidarity detected around 3,719 casualties in Libya in 2018, including killed, injured, and captured individuals. On the other hand, during the first phase of the Libyan civil war, between February and October 2011, the Uppsala Conflict Data Program recorded that more than 3,000 individuals had been killed.Footnote 46 This figure did not include those injured. According to Kuperman, less than 1,000 people were killed before NATO's operation.Footnote 47 Thus, although the number of casualties in 2011 is by far the highest, the number of casualties since then clearly demonstrates that criminal activities continued and worsened in the following decade.
Furthermore, the other dilemma that the new government of Libya faced after the military intervention ended was the return of those loyal to Gaddafi’s regime. Several reports of loyalist insurgencies, especially after widespread revenge and looting committed by anti-Gaddafi forces, demonstrated the challenge of those opposing the new regime. Moreover, the unsuccessful attempt by the NTC to unify all the rebels, given their preference to follow their tribal ambitions, made several loyalists turn against the new government and strengthened their resolve to oppose the NTC. This challenge continues.Footnote 48 The key armed loyalist groups include, among others, the Saif al-Islam clan and the Fezzan-centred group led by Ali Kana, the former head of the armed forces in the South under Gaddafi. All groups have one goal in common: to reinstate the old Jamahiriya. For the first time, the UN invited Gaddafi loyalists to the Libyan political negotiations in August 2016.Footnote 49 This turn of events acknowledges that removing Gaddafi and his regime from power was not the consensual object of all Libyans. Second, regime change and its consequent failed state situation made the prosecution of Gaddafi's son (now the leader of one of the military groups resisting the UN-backed government of Libya) extremely difficult and depended on the political atmosphere in the Libyan conflict. Meanwhile, Saif al-Islam's case remains in the pre-trial stage, pending his transfer to The Hague. Subsequently, even the case against Senussi was declared inadmissible on 11 October 2013.Footnote 50
However, in total disregard of the described chaos, the engagement of the ICC did not end due to the abovementioned three indictments, and the Court found it easy to continue its judicial intervention in the Libyan aftermath. Furthermore, the Court issued three more indictments for two other persons: one for Al-Tuhamy Mohamed Khaled in 2013 (later publicized in 2017) as the former Lieutenant General of the Libyan army and former head of the Libyan Internal Security Agency in 2017, and two in the name of Mahmoud Mustafa Busayf Al-Werfalli in 2017 and 2018, a Major in the Al-Saiqa Brigade and a member of the Libyan military opposition group. It should be noted that both indictees were never in the Court’s custody, and both are dead now, their cases being withdrawn in 2022.Footnote 51 Therefore, who could have had the requisite power and commitment in Libyan territory to prosecute or extradite them to the Court?
II. INTERNATIONAL CRIMINAL JUSTICE: REGIME CHANGE AND FAILED STATE CRISIS
A. Regime Change and the ICC's Independence
Regime change, a lethal strategy towards a country’s government, can be defined as “the forcible replacement by external actors of the elite and/or governance structure of a state so that the successor regime approximates some purported international standard of governance”.Footnote 52 It means, in a very crude sense, the removal of a government's head of state or the other ringleaders/political officials. This might happen through the issuance of ICC indictments, and the indictments, if executed, could cause the arrest of those leaders. Otherwise, a regime change can delegitimize the targeted government “thereby potentially facilitating their exit from the national political scene in a less direct manner”.Footnote 53 As the world “shamer-in-chief”, the ICC brings “a kind of international opprobrium” that is without parallel in the international community.Footnote 54 Indeed, the Court's engagement in conflicts provides a form of soft power to shape international and domestic narratives. Each side might justify its ends and means, as was the ICC's undeniable impact on shaping the narratives of the Libyan conflict. The Court contributed to a perception of the conflict between the “good” NTC and the international community and the “evil” Gaddafi regime; it helped the NTC and NATO coalition justify their regime change strategy.Footnote 55
This argument is best demonstrated by the NTC being recognized as the sole legitimate authority in the Libyan territory. Even though the series of the Libyan opposition's recognitions came as early as March 2011 – by France, who was intensely involved in the military operationFootnote 56 – by 15 July of that year, less than a month after the issuance of three arrest warrants, a group of thirty-two states (including the US, the UK, and other states leading the operation) declared, at the Libya Contact Group meeting in Turkey, that they would deal with the NTC as the “legitimate governing authority in Libya”.Footnote 57 The international community acquiesced to this somewhat controversial “collective recognition”Footnote 58 simply because the Gaddafi government was pictured as the only evil side of the conflict, which had to be eliminated as soon as possible.
In this sense, given that the ICC can intervene in ongoing conflicts, it has the power to directly affect the dynamics of these conflicts and incapacitate key parties, including incumbent leaders. Therefore, judicially or militarily pursuing regime change is prone to concealing powerful states' abusive behaviour and triggering judicial intervention to punish adverse regimes on a whim. In recent decades, using the ICJ as a trigger for coercive response has become prevalent.Footnote 59 This tendency has been developing since the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY).Footnote 60 Thus, the implications of “regime change by stealth” and the use of the ICC to achieve a non-ICJ objective of removing governments, specifically in the case of so-called rogue regimes, might be highly damaging to the independence and credibility of the ICC.Footnote 61 In other words, intervention by the ICC, as a supposed independent institution, can reproduce and justify unjust realpolitik.Footnote 62 As a result, Security Council referrals have been widely subjected to critiques of a North-South dimension in international relations. Critics usually argue that the Court is acting as a servant of the “permanent five” – as a tool in the hands of powerful Western states. On the other hand, another critique of referral cases is that Security Council members decide on referrals without providing any real support and commitment. Consequently, the ICC intervenes without international community sponsorship, making it ineffective and undermining its legitimacy.Footnote 63
More fundamentally, this illuminates the problematic aspect of international law in general and the ICJ in particular: the unavoidable influence of realpolitik on the law.Footnote 64 The then-Prosecutor of the ICC has declared unambiguously that the law is applied “without political considerations, but the other actors have to adjust to the law”.Footnote 65 In addition, at the conclusion of the Rome Conference, Bassiouni claimed that “realpolitik, which sacrifices justice at the altar of political settlements, is no longer accepted”.Footnote 66 Nonetheless, it has been argued cogently that the Court does not merely replace politics but enacts and legitimizes them.Footnote 67 The boundaries of the ICJ are not as “apolitical” as they seem,Footnote 68 which urges the Court to provide a wise pattern of behaviour. The instrumentalization of the Court by powerful states within the international community is a contemporary issue that the Court needs to counter.Footnote 69 At any rate, the presumption that states in the international community will “sacrifice” themselves for the greater moral good of others’ sake is not a very plausible scenario, especially when realpolitik dominates inter-state relations.Footnote 70
B. Failed State and Principle of Sovereignty
On the one hand, Libya has been torn apart by political rivalries and proxy wars with no real functioning government, having filled in the power vacuum arising from the pursuit of regime change.Footnote 71 On the other hand, the numerous political negotiations initiated to end the conflict remain in limbo.Footnote 72 As a result, Libya has become a failed state, and there are no bright prospects for ending this chaos in the foreseeable future.Footnote 73
Gaddafi's army could have defeated the insurgents without international military intervention and might have won the conflict.Footnote 74 However, ignoring the benefits achieved by the peaceful solution of the conflict for Libyans at the outset of military intervention, later hindered by the ICC's intervention when there was a better chance to resolve it, significantly extended the armed conflict and magnified the harm to civilians,Footnote 75 contrary to both the intent of the UN resolution and the Court's mission. Bearing this analysis in mind, the Gaddafi government's victory could, beyond doubt, have led to more cases of international crimes. In contrast, international military/judicial intervention paved the way for the current chaos and routine crime in Libyan territory.
Discussing the text of Resolution 1973 itself is also relevant. The ICJ promise is linked to establishing a ceasefire and finding a peaceful solution to the conflict.Footnote 76 During its adoption, abstaining states – namely Russia, China, Germany, Brazil, and India – expressed clearly that the best solution to the conflict was to end it peacefully.Footnote 77 Further, according to its preamble, the Court is responsible for preventing international crimesFootnote 78 but has added fuel to the fire in the Libyan conflict instead.Footnote 79 The ICC, among others, bolstered the resolve of the NTC to refuse to negotiate with the Gaddafi regime and thus motivated them to seek regime change via military means.Footnote 80 As Hisham Matar, a Libyan author, indicated, the result was that “Libyans used to be afraid of a brutal state; now they are afraid of the absence of the state.”Footnote 81 Consequently, it is argued that there was no real cessation of international crimes after the regime change, which is bolstered by the statistics discussed earlier.Footnote 82
Mission creep – which follows the regime change strategy rather than the Resolution 1973 authorized mandate – in the case of Libya, conspicuously demonstrates the danger of realpolitik on the one hand and, on the other, the threat of a failed state catastrophe in a multilateral mission authorized by the UN. A failed state situation or a territory without a centralized functioning government is a conundrum leading to dangerous circumstances that contemporary international law urgently needs to avoid.Footnote 83 Contrastingly, from a realpolitik perspective, a failed state is not necessarily detrimental or forbidden. However, there must be an effective central government for all judicial functions. The lack of one leads to chaos and unlawful behaviours.Footnote 84 In other words, justice needs a governmental sanction because the Rome Statute primarily makes states responsible for fighting with impunity and prosecuting criminals before their judicial systems.Footnote 85 Consequently, the ICC must take the initiative without jeopardizing the principle of sovereignty and creating a power vacuum.
The abovementioned dilemma arises because courts and other legal tribunals are an “epiphenomena of stability”. There is no evidence that the mere existence of courts can “create the minimum political order that is necessary for their operation”.Footnote 86 Hence, the principle of sovereignty and its concomitant effective control is vital to the success of the Court.Footnote 87 The Rome Statute emphasizes that “nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State”.Footnote 88 More precisely, this conundrum is rooted in the paradox of contemporary international law: a horizontal/vertical system and constant tension between the principle of sovereignty and international community objectives such as international human rights law and international criminal law. However, preventing international crimes is impossible unless a sovereign state exists. For example, Somalia still has no functioning government to stop the warring factions. In the case of Sierra Leone, rebels fought a weak government which could not control the whole territory. The state (and its governmental apparatus) has a protective role that cannot be replicated by the international community, particularly when the transformative occupation is not sanctioned. Resolution 1973 precludes the occupation of Libyan territory,Footnote 89 and the UN-sponsored administration of a territory is not the case.Footnote 90 This relates again to the nature of international law. Cryer perfectly observes this complication as follows:
An excess of sovereignty and state power can lead to international crimes, as in the Holocaust, but so can a lack of sovereign authority … sovereignty is still part of the society in which we find ourselves, and its relationship to ICL [International Criminal Law] is multifaceted and not easily reducible to shibboleths on either side.Footnote 91
Instead, from the late nineteenth century onwards, international lawyers have assigned “egoism, arbitrariness and absolute power” to sovereignty, disregarding its foundational role within the international legal system. It is rightly argued that international cooperation among states can best guarantee the binding nature of international law. At the same time, sovereign states are limited to the raison d’être of statehood to provide protection and welfare of their people.Footnote 92
The Court's contribution to any conflict cannot justify breaching the principle of sovereignty and changing a violent conflict into a failed state. This fact, again, urges the Court to provide a wise pattern of behaviour.
III. JUSTICE AND PEACE FOR THE PEOPLES
A. Independence: A Requirement against Realpolitik
Fundamentally, judicial independence is critical for the international rule of law. The rule of law “is essential for peaceful coexistence and cooperation among States” as international peace and security depend on international cooperation and peaceful settlement of disputes.Footnote 93 The Statute's preamble confirms that it was established as an independent judicial institution.Footnote 94 However, owing to the structural flaws within the ICC, the Court can be instrumentalized by the states of the international community, and its independence is easily compromised – as recent history testifies.Footnote 95
As a result, to achieve and guarantee the independence of the Court, one contributing factor can be the Court's self-perception as independent and the way the institution expresses its independence to the outside world.Footnote 96 Therefore, to enhance its standing in the international legal system, the ICC needs to assess each situation unilaterally, independent of uninvited external influence such as realpolitik, to the greatest extent possible.Footnote 97
Secondly, the ICC legal system cannot be similar to the domestic legal systems that apply to every kind of wrongdoing. Instead, it must be selective, triggered only when it finds a cooperative partner to execute its decisions in select cases. This complication urges the existence of an independent Court to interpret and implement its promises on its own instead of merely giving in to the wishes of international interveners before ensuring their reliable commitment to executing the Court's orders or to the chameleon-like nature of an ongoing, evolving conflict.
Last but not least, the negative implications of realpolitik on the international legal system are undeniable facts. But the law may help harness intractable politics. If it becomes sufficiently independent, the ICC can be the best body to harness realpolitik.
Overall, the Court has no institutional capacity to control the behaviour of intervening states and other actors engaged in a conflict. As a result, instrumentalization is possible and can discredit the Court and make it delegitimized. This means the ICC must fight for its independence and eliminate perilous realpolitik. The aim should be to protect the Court's independence and avoid its hijack by powerful states and non-state actors such as internal insurgents and even international human rights non-governmental organizations – something it failed to do during the Libyan crisis. To do so, the Court must resolve another lacuna its jurisprudence suffers from, which will be discussed in the sections below.
B. State Cooperation and the Court
As recognized by the first Chief Prosecutor of the ICC, Luis Moreno-Ocampo, there is a paradox in the enforcement pillar of the Court. “[T]he ICC is independent and interdependent at the same time. It cannot act alone. It will achieve efficiency only if it works closely with other members of the international community”.Footnote 98 Because of this, drafters of the ICC Statute adopted a hybrid model encompassing characteristics of both the horizontal and vertical models. Under this model, states must comply with the Court's request for cooperation.Footnote 99 However, according to Cassese, the Rome Statute creates a more traditional horizontal model, where relations between state parties and the Court are facilitated by inter-state judicial cooperation.Footnote 100 The Court needs constructive relationships with external partners to maintain constant support to enforce its decisions.Footnote 101
The AU and NATO could have been considered international enforcing partners for the Court's warrants in Libya. Instead, the AU became an adversary to the ICC's intervention while NATO followed the regime change. The conflicting actors negatively impacted the resolution of the conflict, and the lack of cooperation from members of the Court is an undeniable fact. This has occurred in situations referred to the Court by the state members themselves: the best example is the case of Uganda, in which the lack of expected cooperation from the government resulted in the Prosecutor changing his cautionary stance to a more confrontational one.Footnote 102 Additionally, the case of Kenya is intriguing, where the Prosecutor triggered his proprio motu. This time, new narratives of victimhood emerged after the Court's intervention. Although Kenyatta and Ruto, the main indictees, were able to frame their indictment as an attempt by the ICC to victimize the Kenyan nation, it was also clear that inside Kenyan society the ethnic communities to which the Court's suspects belonged were also writing their victimhood narratives. Therefore, in addition to those who were the real victims of the electoral violence, a new category of victims also comes to light: those targeted by the ICC and the ethnic communities they belonged to.Footnote 103 This reaction trend from the people tends to create domestic resistance towards the ICC, making its decisions difficult to enforce. Therefore, it can be examined that the enforcement pillar of the ICC constitutes the weakest part of the Rome Statute in its current form; consequently, other factors such as the domestic perception of their people, their needs, and priorities are the facts the ICC has to take into account. Otherwise, it is prone to be instrumentalized, and its pivotal independence ended.
C. The Quest for the Right Constituency
So far, it is argued that the Court's intervention in Libya accelerated the current failed state situation and the resulting civil war, which paved the path for more criminal activities. Some profound questions can be asked: Why have powerful states instrumentalized the Court so easily, and why did it do nothing to stop their abusive behaviour endangering its independence? The answer is in the fundamental problem of the constituency the Court is supposed to represent.
Every legal system needs a society to represent and address the law, which needs to respond to the social context in which it operates.Footnote 104 Law has a “social meaning”; this understanding derives not from the law's legislator or enforcer's intention but rather from how relevant interlocutors, such as the whole of society or the people in a bottom-up perspective, understand and communicate with the law in light of their social necessities.Footnote 105 What is essential to ensure the legitimacy of the judiciary? One unquestionable factor is the respect people of the society to whom the Court is engaged pay it.
However, the situation for the ICC is more complicated. Two points are prominent in each case of the Court's jurisdiction. First, the Court does not have independent execution power. Second, as a result of the first point, it must rely on the cooperation of states, either in whose territory the crimes are perpetrated or the international community; that is, states and international organizations intervening in a specific conflict. If neither of the abovementioned scenarios is ready to execute the Court's orders, ICJ fulfilment will be severely limited. Moreover, practice over the past two decades has shown that the function of the ICJ remains embedded in the horizontal basis of state consensualism, the principle of sovereignty and international cooperation of states,Footnote 106 which the Preamble to the Rome Statute welcomes. In contrast, the main beneficiaries of ICJ promises are the people of each society.
As a result, the Court currently suffers from a low degree of legitimate constituency; (1) it lacks a defined community to which it is responsible as it is not clear whether the Court is primarily responsive to the targeted society entangled in a conflict or other actors and institutions and (2) it is unable to demonstrate a consistent practice of values associated with each party/constituent it decides to represent.Footnote 107 For example, potential ICC interlocutors can be state parties; non-state actors such as belligerents fighting against their governments or international NGOs; the international community; the Security Council; victims of violence; and people in the society where the conflict is occurring. As a result, the Court might have different constituencies respecting complicated divergent situations and has to intervene.Footnote 108 This fundamental flaw, perhaps better described as a normative confusion in the Court's design, makes it vulnerable to intractable realpolitik because it must give in to the momentum of war and power politics instead of independently assessing its ICJ promises.
Investigations and prosecutions of state officials are also hindered by the ICC's professed vow not to venture into politics and to protect its legal formality as an impartial and apolitical institution. As a result, the ICC is compelled to negotiate with state officials and gain their cooperation to be effective. This requires the Court to develop a capacity to consider interests and facts other than the legal formulae produced in the Statute. In any case, in a world of states where state cooperation is needed for the ICC to deliver its ICJ promises, the Court is overwhelmed by challenges when the targets for prosecution are the incumbent agents of the state.Footnote 109 As a result, state cooperation and compliance with their ICC obligations result from realpolitik calculations, especially when the stakes are high and include incumbent officials and heads of state.Footnote 110
As expressed by Higgins, to remain “legal” is not to ignore everything that is not “rules”. This approach allows the Prosecutor to reflect on the purposes and objects of the ICC's architecture and its Statute within the global context and then identify effective methods of fulfilling those objectives.Footnote 111 Rather than a formalistic application of the rule of law, the Prosecutor and the Court must consider the array of extralegal interests to produce the support necessary to enforce its decisions.Footnote 112 For example, the United Nations High-Level Panel on Threats, Challenges and Change has, with regard to the prevention of conflicts, concluded that the ICC is a useful tool for promoting peace and security, but this depends on when and how it will decide to intervene.Footnote 113 Among different plausible ones, which constituency is invoked in any given situation will depend on “a range of exogenous and endogenous” elements, the degree of resistance the ICC has to face, and the pertinent manoeuvres to achieve judicial goals in circumstances concerning ICJ principles.Footnote 114 Accordingly, it is necessary to consider several extralegal contextual factors in each assessment case.Footnote 115
Indeed, the best constituency the Court should represent, at least in complicated scenarios such as Libya, is the people of the society in the throes of war because the Prosecutor should maximize deterrence potential and prevent future crimes through the power bestowed upon them.Footnote 116 The Rome Statute's preamble recognizes the preventive obligation of the Court and its interrelations with the peace and security of mankind and international legal principles such as the principle of sovereignty.Footnote 117 In light of this interpretation, protecting people against the perpetration of international crimes has been accepted, according to international jurisprudence and scholarship, as a component of peace within the international community.Footnote 118 The “quest for justice for yesterday’s victims of atrocities should not be pursued in such a manner that it makes today’s living the dead of tomorrow”.Footnote 119 Pursuing justice must not motivate entrenched leaders to dig in their heels, eventually making the conflict more violent and intractable. This is called the critique of “morbid justice”.Footnote 120 To avoid this, the Court is strongly advised to be unhurriedly cognizant in complicated scenarios and only trigger its weapon of prosecution when it benefits the people of that society and results in greater peace and fewer crimes. This conclusion needs further clarification.
The ICC might have multiple constituencies to consider, which change over time and across different contexts. For example, states may support the ICC intervention in one context but not another for political reasons. The people may at once support an ICC investigation but not members of the factions they support. How should the Court respond to each complex situation? It is a truism to claim that the real telos of the ICC, described in its preamble, is to guarantee the safety and well-being of people in their societies. Hence, it is necessary to represent them in times of necessity and to behave as their surrogate towards the international community. This orientation will solidify international respect for the ICC as an independent judicial institution and lead people entangled in violent situations. The ICJ's principal beneficiaries often turn to the ICC for a legitimate settlement of international disputes and for prosecuting international criminals.Footnote 121
To explain, the Court is a means to serve ICJ principles, among which is crime prevention. The ICC is not officially designed to address the war's prevention, end, or post-conflict process. Instead, it aims to counter specific acts of atrocity “regardless of the context in which they occur”. In criminology, deterrence means “omission of a criminal act because of the fear of sanctions or punishment”, puniter, ne peccetur, or “punishment so there will be no crime”.Footnote 122 This type of deterrence is rooted in the presumption that “would-be criminals weigh the potential benefits of committing [a] crime against the potential costs of being punished for the crime”. The calculation is affected by “the certainty, severity and swiftness of punishment in the legal system”.Footnote 123 Unfortunately, this interpretation of deterrence is not helpful to ICC for two main reasons. The first is that the plausibility of punishment by the ICC is “far from certain and very slow”. The second reason is that “atrocity criminals are exceptional, highly risk-acceptant actors unlikely to worry more about international criminal punishment than the constant local dangers they face”. For leaders ordering the commission of crimes against humanity, the presence of “a far-removed, lurching court in the Hague” simply cannot put off their criminal will.Footnote 124 Generally, leaders and commanders order or acquiesce in the perpetration of crimes to gain or maintain power. This usually means that when threatened by international prosecution, “the alternatives are either to surrender and be sentenced or to continue the violence through which they maintain their hold on power”. Naturally, most of them prefer the latter.Footnote 125
Moreover, it has been argued that the ICC's contribution to preventing future atrocity crimes through timely intervention is potentially great.Footnote 126 Prevention is premised on the assumption of the future victims of a crime. It could even consider the significance of the apparatus necessary to prevent future crimes, which is precisely the role of the government in each national society. Thus, following this understanding, the Court must protect those governmental institutions necessary for forging partnerships, protecting their people, and implementing ICJ principles during a conflict and its aftermath. In this regard, it is not an exaggeration to claim that serving the people of each society in the throes of war in complicated scenarios such as Libya is meant to follow a preventive rather than a retributive approach. The Court's two-decade trajectory does not provide sufficient testimony to the theorized argument. The individual perpetrator punishment approach surpasses other non-retributive measures that the Court might have taken in different situations.Footnote 127
To exemplify, the rupture between the Court's punitive approach and the reality of peoples’ needs can never be better explained than the research conducted in the Democratic Republic of the Congo (DRC). In one survey, when the Congolese were asked what should happen to those who committed international crimes, 69 per cent of the victims surveyed confirmed that the perpetrators should be tried and punished. However, when researchers asked the victims to list their priorities for their government, “justice” occupied only the lowest of their immediate priorities. In eastern DRC, only 1 per cent of the survey victims answered that the government should direct immediate attention to prosecuting criminals.Footnote 128
The ICC may have followed a retributive path to the Libyan situation without difficulty. Nevertheless, regarding the limitations the Court faces in cases like Libya, the focus on punishment of the individuals was justified by ending the impunity principle of the ICJ, which gives rise to doubts among international commentators as to whether mere punishment could be considered a right and adequate response to deal with the criminal events given their “enormous moral, historical and political significance”. Considering the abhorrent collective nature of these crimes and the way ordinary people find themselves in the throes of a violent conflict and have to choose sides, whether or not punishment can be regarded as the best way of prevention becomes highly questionable.Footnote 129 As a result, the strategy to end impunities at the likely expense of disregarding the principles the ICC has been founded upon does not seem wise or efficient. It has been argued that the goal with the highest expected value is preventing the commission of international crimes. This is because of the enormous and destructive nature of the violation of international criminal law and, particularly, the enormous societal costs associated with those crimes.Footnote 130 But the following questions remain: How will necessary prevention be realized, and who are the real interlocutors of law in situations like Libya?
The late Justice William J. Brennan of the US Supreme Court once said, “the law is not an end in itself, nor does it provide ends. It is pre-eminently a means to serve what society thinks is right.”Footnote 131 This applies to the ICC Statute too. What does Libyan society think is right? For an independent Court primarily responsible for protecting people, including preventing and deterring future crimes against them, the principle of sovereignty and its concomitant peaceful resolution of the conflict come first. This is because every society needs a centralized functioning government to procure requisite peace and security. Otherwise, regime change and its consequent failed state status can only pave the path to more criminal activities. The Court's best strategy would have been to prevent future crimes and victims or avoid having Libyan society fall victim to a failed state situation facilitated by court intervention. Sadly, many human rights organizations and NGOs share this biased retributive approach,Footnote 132 but the Court must be independent of their demands.
D. Peace v. Justice Dilemma: Preventing Future Crimes and Serving Constituent People
Officially, the position of the Court has been to prioritize justice over peace. In the Statute itself, peace is mentioned only once in the preamble. A 2007 policy paper of the Office of The Prosecutor, confirmed by Fatou Bensouda, Moreno-Ocampo's successor, states that peace is not part of the Prosecutor's mandate and that “any political or security initiative” must conform to the Rome Statute in a justice enforcer sense of view.Footnote 133 This approach, referred to as “legalism”, seeks to detach other extralegal factors and interests from the law and claims to emancipate the ICJ from realpolitik.Footnote 134 However, protection from international crimes does not necessarily coincide with an interest in punishment.Footnote 135 Article 16 of the Rome Statute recognizes that a prosecution can have a dangerous effect on the peacebuilding process regarding the deferral of prosecutions.
Therefore, the tension between conflict resolution (peace) and criminal accountability (justice) is a reality that needs great attention.Footnote 136 In this regard, peace is undoubtedly one of the primary concerns of international law. However, detaching the ICJ from its more political connotationFootnote 137 can risk the danger of regime change and, ironically, invite more realpolitik or increase international crime – as witnessed in Libya. Therefore, a legal middle ground must be found.
E. Peacemaking Mandate of the ICC
As the ICC needs to follow and tailor its jurisdiction to assist people entangled in the targeted society, it is possible to argue that the ICC's jurisdiction needs to come close to the UN regime of law since the latter was designed first and foremost to protect the principle of sovereignty. The UN Charter regime is built upon restoring and maintaining international peace and security based on sovereignty. In contrast, the ICC promotes the ICJ agenda based on individual criminal accountability. In particular, the referral cases lend new urgency to the mentioned argument as both regimes seem to coexist naturally. To garner the requisite peace discussed above, the ICC must respect the principle of sovereignty as the bedrock of the international legal system. But this principle, cited above, has been mentioned in the preamble of the Statute only en passant without accentuation.Footnote 138 As a result, the ICJ promises to come close to the regime of the UN, in which the principle of sovereignty is accentuated. Moreover, General Assembly resolutions recognize the role of the Court to “achieve sustainable peace, in accordance with international law and the purposes and principles of the Charter”.Footnote 139
Be that as it may, the Court cannot apply the UN Charter automatically and needs a legally solid foundation to respond to the mentioned necessity. Regarding the provisions of the Rome Statute, there are two paths the Court might take.
1. Article 21
First, Article 21(1)(b) of the Rome Statute puts forward a solution where it confirms the applicability of “treaties, principles and rules of international law”,Footnote 140 which justifies the Charter's involvement. As a result, the Court shall determine whether the Security Council has preliminarily determined the existence of a threat to the peace, a breach of the peace, or an act of aggression as provided for in Article 39 of the Charter. Since the Security Council’s discretionary power on the situation, described in Article 39, is not “totally unfettered”, the Court should, therefore, determine that the Security Council has acted according to the purposes and principles of the Charter. The Court, for instance, should determine if the Security Council's resolution of the referral in that situation “is in accordance with its settled practice” and the common understanding of the UN Charter.Footnote 141 This implies that the Court has permission to interpret the Security Council's referral and supervise any resolution implemented, which can pave a path for better enforcement and non-partisan fulfilment of the ICJ agenda. Furthermore, the Statute's preamble reaffirms:
the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.Footnote 142
It continues to state that the Court is determined “to establish an independent permanent International Criminal Court in relationship with the United Nations system” (emphasis added).Footnote 143 This phrase confirms the importance of the Court's independence, its relationships with peace, and the principle of sovereignty highlighted in the Charter. Moreover, this account implies that the ICC can supervise and indirectly judge the Security Council's decisions and how they are implemented, but only if the former maintains its independence and finds its proper constituency.Footnote 144
2. Article 53
Second, the Rome Statute formulates a criterion of “interests of justice” to give discretion to the Prosecutor to reject the initiation of or halt an investigation. Article 53(1) states, “The Prosecutor may in some circumstances decline to prosecute on the grounds that it would not serve the interests of justice.”Footnote 145 More specifically, Article 53(1)(c) requires the Prosecutor to consider whether, in taking into account the “gravity of the crime” and the “interests of victims”, there are, nonetheless, substantial reasons to believe that an investigation would not serve the interests of justice.Footnote 146 Again, this grants prosecutorial discretion, which needs further explanation.
Prosecutorial discretion is the power held by the Office of the Prosecutor (OTP) to exercise selectivity in the choice of occasions, including both situations and specific cases in a given situation for the Statute's enforcement.Footnote 147 In this context, selectivity is the “discretionary power to do nothing about a case in which enforcement would be clearly justified”.Footnote 148 More fundamentally, discretion is meant to be “the faculty of deciding or determining in accordance with circumstances and what seems just, right, equitable, and reasonable in those circumstances”.Footnote 149 The nature and consequences of international crimes and the limited resources available to the ICC “may necessitate and justify selective justice”. This concept appears in various legal systems “where it is generally used to acknowledge the need for discretion and the inability of legal texts to codify answers for difficult issues”, as discretion is also necessary to respond to highly politicized cases and situations.Footnote 150 Thus, the most urgent rationale for prosecutorial discretion is to protect prosecutorial independence,Footnote 151 which is why the term remains undefined.Footnote 152
Notwithstanding Article 53, the Statute lays the foundations for interpreting the controversial concept of the interests of victims; the gravity of the crimes; and, at the prosecutorial level, the age or infirmity of the alleged perpetrators or the role they had in the crime. It should be noted that this list is not exhaustive; the drafters intentionally opted for practical ambiguity of the concept to allow for broad interpretation. The term “in the interests of justice” shall require the Prosecutor to take account of the broader interests not expressly mentioned in the Rome Statute, including the potential ramifications of an investigation into the state's political environment over which the Court is exercising jurisdiction.Footnote 153 Also, the criterion allows for dynamic assessments and enables the Prosecutor to adjust to changing realities of complicated situations. To do so allows them to constantly evaluate and adapt their strategy of invoking the ICJ.Footnote 154 This gives the Court a multipurpose tool, allowing a case-by-case approach adjustable to every situation of complication and idiosyncrasy.Footnote 155 The participants of the Rome Conference preferred to maintain it undefined, to be triggered in complicated cases when there was no straightforward answer.Footnote 156 Schabas (impliedly) and Pues (expressly) confirm this practicableness of having a broad interpretation.Footnote 157 However, although the discretion seems broad, it is not unfettered. The goals and principles of the Statute pose certain legal constraints on the power granted to the Prosecutor.Footnote 158
Dworkin had a very helpful metaphor: “discretion is the hole in a doughnut”, where the dough is considered to be the legal framework limiting and determining the hole and the space for discretionary manoeuvre in a system. In this interpretation, even “strong discretion” is conditional as it is all located within the legal system.Footnote 159 Therefore, the Prosecutor should focus efforts so that the application of prosecutorial discretion actively contributes to the objects and principles expressed in the Statute, as those are the guidelines that connect the relevant constituent mentioned above – the people of each society in conflict with the ICC.Footnote 160
The objective constraint relevant to the application of the ICJ can, therefore, be the promise of restoring/making peace, respecting the principle of sovereignty, and understanding peace as the backbone of public international law based on the UN Charter, which, in the preamble of the Statute, is to serve the interests of the peoples entangled in a conflict.
Generally speaking, despite the above argument, the policy papers issued by the Office of the Prosecutor do not support this interpretation as they prefer to separate the interests of justice from the interests of peace, noting that “the broader matter of international peace and security is not the responsibility of the Prosecutor; it falls within the mandate of other institutions”.Footnote 161 This is because the OTP has a policy that rests on a presumption that favours investigation, prosecution, and punishment.Footnote 162 This “legalism” approach is seemingly more aligned with the ICJ but, in reality, works to the detriment of the Court's independence and efficiency, as seen in Libya. Therefore, in light of mentioned discretionary selection, the interpretive presumption in favour of mere investigation and prosecution rings hollow and seems contradictory.Footnote 163
Curiously, the Rome Statute distinguishes between investigation and prosecution and nowhere is this more transparent than in the first two paragraphs of Article 53. Paragraph 1 explains the Prosecutor’s decision to “initiate an investigation”. It refers to a “situation”, although “potential cases” remain part of the landscape. However, Paragraph 2 is triggered after the decision to “initiate an investigation”, referring to the Prosecutor’s decision not to proceed with a prosecution. Indeed, it is possible at each stage for the Prosecutor to not proceed with a case without first removing the situation referred to from the Court's order.Footnote 164 By implication, a referral remains activated, but the specific case is suspended, capable of reactivation at any time in light of new facts, information, or necessity.
Generally, Article 53 juxtaposes several ICJ punishment and prevention considerations under the expedient notion of the “interests of justice”, indicating that the latter prerogative might trump the former. Thus, it is possible to conclude that the idea of interests of justice is a “relatively broad concept” that could be interpreted to serve a peace imperativeFootnote 165 and bring the Rome Statute closer to the UN Charter. This should be applied wisely in the necessary circumstances and should, exclusively, become a routine approach of the Court but only if it provides more protection for its constituents, with the caveat that its application should be limited to satisfy the criterion of “drastic necessity”.Footnote 166 As a matter of procedure, to restrict its application, it must be approved by the Prosecutor and the PTC jointly rather than by the Prosecutor alone.Footnote 167
3. Overall assessment
Article 21(1)(b) is considered an external path linking the Rome Statute directly to the application of the Charter. Although, in contrast, the concept of interests of justice is more internal, the concept is supposed to reconcile the mentioned rigidity of legalism and the necessity of peace.Footnote 168 Indeed, these two paths provide legal opportunities for the ICC to integrate the definition of and commitment to peace with the relevant understanding of the UN Charter law within its jurisdiction. It is not far from a truism to express that the reason behind the mentioned Articles is to guarantee the independence of the Court in complex scenarios.Footnote 169 Accordingly, the ICC must direct the ICJ's promise of the Rome Statute towards conflict resolution and peacemaking mandates.Footnote 170 Furthermore, the study suggests that providing the Court with the basis to work independently and effectively requires the integration of peacemaking into the jurisprudence of the ICC; peace is supposed to be the best guarantee of the Court's independence to serve its constituents simultaneously.
IV. CONCLUDING REMARK: CONSTITUENT INDEPENDENT COURT IN LIBYA
The ICC's jurisprudence is young and evolving and is still in the process of trial and error. Nevertheless, the way it responds to different situations and the precedent it sets plays a crucial role in the future of this international institution, its legitimacy, and its enforcement. Therefore, the questions underpinning this article are: What has the Court set as a precedent in the case of Libya, and what could they have set? So far, the Libyan precedent seems vague and contradictory or is not concrete.
Generally speaking, any position the ICC takes “seems constantly vulnerable to justifiable counter-arguments”.Footnote 171 The indeterminacy originates essentially from the “enterprise of law”, which, at the same time, “claims to constrain power” and yet “reflects and depends upon power”.Footnote 172 This dyadic contradiction is an inherent characteristic of the law itself: it is at the same time “descriptive” and “prescriptive”, so it sits astride “is and ought”. This nature of law cannot be eradicated.Footnote 173 Against this backdrop, Kant provides the famous indeterminate condition of law. He insists that mere legal rules do not declare the conditions of their application concretely. To do so, “judgement” is necessary,Footnote 174 and “judgement is located in the institutional act of applying the law in one way rather than another, choosing one among many alternative meanings offered by the available vocabulary”.Footnote 175 To make this indeterminacy more complicated, international law plays a role of complication in international relations, as the latter described more with realpolitik; thus, any decision the Court makes is prone to counterargument and criticism, but the ICC must act despite this.
Regarding the ICC, the mentioned indeterminacy divulges itself within the text of the Statute due to the fundamentally contradictory goals assigned to it, particularly in the preamble, which enumerates various ICJ principles. According to Robinson, awareness of these structural contradictions would help the Court toward greater efficiency. If the Court acknowledges that “all decisions are by some metric ‘flawed’”, it can take the analysis to the next level: “what to do with the admittedly-flawed options”?Footnote 176 The ICC must provide a “framework of evaluation” to find the right path in each situation it intervenes in.Footnote 177 The framework the Court desires cannot be achieved before establishing the right constituency(ies) of the Court to implement the principles of ICJ in every scenario. However, according to the research, this evaluation framework cannot be a singular one applicable to every divergent situation the Court has to intervene in. Instead, there must be various frameworks appropriate to each scenario.
The Court itself is the real contender to choose between these conflicting constituencies and deciding which constituency is appropriate to invoke in each situation of complication; this is the real meaning of independence the Court needs to consider,Footnote 178 and it is only through this process of action that the ICC will be empowered to set a reliable legal precedent contributing to the development of its young and evolving jurisprudence. The central hypothesis of this research is that constituency building is a key part of the Court's search for independence. This can help legitimize the Court as, in recent years, its identity and functionality have been severely criticized.Footnote 179
For Libya, the Court, from the start, had difficulty in deciding between a view of the conflict as entailing primarily a humanitarian crisis, the perpetration of the crimes by the tyrant, a regional destabilization, and a domestic political revolution.Footnote 180 Needing proper constituency, the Court merely followed the prosecution of the ringleaders instead of considering other more complicated factors and actors. Notably, in the referral cases when the risk of arbitrary realpolitik is high, and the cooperation of the target state is absent, this strategy only helps the Court delegitimize and depend on the realpolitik at a whim instead of following the ICJ promise in the Statute. Therefore, the one-sided (biased) approach of the ICC contributed to facilitating regime change – put simply, military and judicial interventions and the quest for regime change never allowed peace negotiations to gain momentum. Hence, in cases such as Libya, the Prosecutor must be cognizant of having a timely strategy for deciding when and in which circumstances to issue an indictment or even accept the admissibility of the application. This proposed jurisprudential approach assists the Court in determining the trigger of its jurisdiction independently, without blindly following the military intervention momentum and realpolitik. In Libya, to avoid causing a failed state was a jurisprudential compass; the Court could have avoided assisting the controversial regime change. The principle of sovereignty is the bedrock of contemporary international law. Its dysfunction can easily satisfy the blueprint of drastic necessity discussed before, as the power vacuum left after a regime change results in more crimes perpetrated to the detriment of Libyans, who are the principal constituency of the Court.
Be that as it may, judicial intervention in Libya could have been stalled until the termination of the military intervention and the beginning of the settlement of the conflict. Meanwhile, the Court might have signalled its firm commitment to prosecuting high-profile criminals by wielding its jurisdiction as a “Sword of Damocles” over the parties to the conflict. The judicial arm of the intervention could have been waiting to trigger its authority, providing the interveners, the Gaddafi government or the NTC, with a peace negotiation process. The above proposition could have directed all parties to seriously consider establishing a ceasefire alongside the no-fly zone, as requested by Resolution 1973, and communicate their readiness for peace negotiations. Moreover, even when the indictments were issued, the Court could have made offers to the indictees and the international community to remove the warrants if a final peace agreement between the Gaddafi government and the NTC was signed and implemented. This position could have been justified through the trigger of Article 53(1)(c) and by stating that the Court commits itself to respect the principle of sovereignty and the maintenance of international peace and security in the Charter according to Article 21(1)(b).
Notwithstanding the Court's initial speedy and proactive intervention, it remained silent on the recent widespread crimes committed in Libyan territory. Notably, the Court preferred to stand idle and not take action against warlord Haftar's army, their crimes, and his claim to Tripoli and Libya contrary to the international community's requests. It further ignored the foreign states’ proxy rivalries haunting Libya right now.Footnote 181 Worse still, both Haftar and Saif al-Islam Gaddafi declared their candidacy for the upcoming (but postponed) presidential election,Footnote 182 which makes a mockery of the ICJ promise of the ICC and every criminal activity attributable to them.
Again, considering how many peace talks have been held in recent years, and most recently the peace talk held in Geneva at the time of this work's completion,Footnote 183 the ICC is still missing a proper understanding of the constituency it might represent and prefers to ignore its possible peace enforcement obligations and dispute settlement capabilities altogether. This inactivity alone acknowledges the ambivalence that informed the whole approach of the Court towards the Libyan situation and, more generally, warns us that the same scenario might happen in similar situations in the future. It further emphasizes the urgency of the abovementioned suggestions: an independent Court serving the people is a peacemaking one.
A key concluding point also needs to be stressed. This work does not claim that the ICC alone made the regime change in Libya possible or that the Libyan conflict would have been resolved peacefully without ICC intervention. The critical point – and perhaps an often ignored one – is that the ICC has a general obligation to prevent future crimes, among the other ICJ purposes mentioned in its preamble. This international institution cannot exclusively prioritize one purpose of its raison d’être more than others; it is prone to be instrumentalized by realpolitik, especially considering the practical limitations the Court suffers from.
Acknowledgements
The author would like to thank the reviewers for their comments.
Funding statement
None.
Competing interests
None.
Heidarali TEIMOURI I am an Iranian, born in 1983. I graduated with BA Political Science from Shahid Beheshti University in 2006. Then in 2006, I moved to the realm of law and obtained an LLM in Public Law from Shahid Beheshti University. In 2011 I graduated from the University of Groningen and obtained an LLM in International Law and Law of International Organisations. Then, in 2017 I finished my thesis entitled: Responsibility to Protect and International Intervention: A Case Study of Libya, supervised by Professor Surya Subedi, and Obtained a Ph.D. in Law. Currently, I am a lecturer in international law at the University of Tehran, College of Farabi, Department of Law, since 2019. My main interests of research are: International Law of the Armed Conflict and the Use of Force, History of International Law, Philosophical and Theoretical Development of International Law, Creation and Development of Nation-States in International Legal System, and Internationally Criminal Law.
