The referral by the United Nations (UN) Security Council of Muammar Gaddafi and his regime to the International Criminal Court (ICC) for possible crimes committed in suppressing the ongoing uprising is perplexing. The UN Security Council’s actions are akin to threatening a serial killer with arrest in the middle of one of his deranged killing sprees. Once the serial killer calculates that he has already committed atrocities that will subject him to ‘jail time’, what is to prevent him from continuing with his murderous activity?

The UN Security Council also imposed an arms embargo, which is ineffectual since Gaddafi already has all the armaments that he needs; a travel ban which will have minimal impact because the regime has to consolidate its position in the country; and an asset freeze, which will be difficult to implement because of the extensive global resources at the disposal of the regime. In effect, the UN resorted to economic sanctions rather than the more robust enforcement measures which are more likely to lay the foundation for the liberation of Libya.

The UN Security Council chose this route in order to be seen to be doing something. Given the economic and oil interests of key Security Council members, including the permanent five who have a veto over decisions, the sanctions and ICC referral was considered as a compromise option.

African countries were effectively caught flat-footed by the Security Council (despite the presence of key players on the Council like South Africa and Nigeria). African countries and their continental organisation the African Union (AU) have demonstrated a lack of appetite for confronting Gaddafi. The AU is not prepared to do anything more concrete than issue statements and perhaps send an envoy. In the absence of any concrete action from the AU, the UN Security Council’s actions are the only act of ‘intervention’ from an international organisation. The African countries on the UN Security Council could not dissent with the referral to the ICC because they could not propose an alternative way of dealing with Gaddafi.

The only other UN Security Council referral, that of President Omar Al-Bashir of Sudan, for crimes committed in Darfur, has met with controversy and yielded few results. As a result of this referral the AU is in the middle of a stand-off with the ICC, and has decreased its cooperation with the court. The fact that African countries on the UN Security Council overlooked this current AU-ICC stand-off to support the resolution for a referral and sanctions raises a number of issues.

Unfortunately, it would appear that the UN Security Council is deploying the ICC to fight its own battles. A UN Chapter 7 resolution was necessary to deal with the Libyan situation given the clear breach of international peace and security, and a worsening humanitarian crisis along its frontiers. Specifically, Article 42 of the UN Charter enables the UN to ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’.

Article 43 further states that ‘all members of the United nations…undertake to make available to the Security Council…armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security’. The Council should have deployed an enforcement mission to intervene, but since Gaddafi has promised that foreign troops will come home in body bags, like Vietnam, no country on the UN Security Council was prepared to even contemplate such an option.

Interestingly enough there is a much clearer case for a UN enforcement mission on humanitarian grounds in Libya today, than there ever was in Iraq. Such is the duplicity of the current international system.

In the final analysis, if the UN Security Council is using the referral as a sleight of hand to decrease the pressure on it to fulfill its mandate, enshrined in the Charter, then it is not a good day for the ICC. Gaddafi will only appear in the Hague if he loses the ongoing battle and if he is over-run by the opposing armed militia. Obviously, the very same UN Security Council will not intervene to arrest him and take him to the Hague. But what if he does not loose and the gallant efforts of the uprising are brutally suppressed? Then the international community will once again have blood on its hands. Furthermore, the ICC will still not be able to arrest him.

The prosecutor of the ICC has no option but to undertake the necessary interventions. But at the end of the day it appears that the UN Security Council has cynically deflected its responsibility to the ICC, knowing full well that the only other option it would have to contemplate would have been a military intervention. In the meantime the clamour for the Council to do something has died down temporarily. The ICC prosecutor has stepped into the fray. The battle for Libya continues and the poverty of the international system in promoting peace and security is yet again exposed.

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* Dr. Tim Murithi is Head of the Transitional Justice Programme at the Institute for Justice and Reconciliation in Cape Town.
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