International Justice

CJ354 Endicott College

The Politicized Referral of Libya

When the UNSC referred Libya to the ICC under Resolution 1970, there were multiple indications that the motivations behind the referral from UNSC member nations were highly politicized.

First, Resolution 1970 excludes non-ICC state parties. This supports many previous complaints that the ICC is only interested in persecuting crimes in certain nations and that similar crimes within the same context cannot be tried in other nations who did not ratify the Rome Treaty.

Second, the referral includes a reference to Article 16 of the Rome Statue, which allows the UNSC to suspend an investigation or prosecution by the Court for 12 months.

Third, the ICC is only able to try crimes in Libya that occurred after February 15, 2011. There are many issues raised by this narrow time frame given to the court, but the biggest is that certain records of the relationship between the US and the UK with Libya prior to February 2011 cannot be used in any of the ICC proceedings.

This is a problem because there was significant evidence that the United States and the United Kingdom were closely involved with the Gaddhafi regime, including in the torture of Gaddhafi regime enemies.

Many scholars have argued that the relationship between the US and the ICC has begun to improve in recent years, but does this highly politicized referral by the UNSC indicate otherwise? Is it possible that the United States didn’t vote to refer the Libya situation because it believed that the ICC was the best body to investigate the crimes, but rather because it believed that the provisional referral would protect the United States from any scrutiny over their relations with the Gaddafi regime prior to the uprising?

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