The Multilateralist

The Libya resolution: prosecution as bargaining chip?

Last night, the UN Security Council passed unanimously a resolution imposing an asset freeze and travel ban on Libya’s ruling elite, and also referring the situation to the International Criminal Court. None of these measures is unprecedented: the Council has used asset freezes and targeted sanctions with increasing frequency in recent years, and it referred ...

Last night, the UN Security Council passed unanimously a resolution imposing an asset freeze and travel ban on Libya's ruling elite, and also referring the situation to the International Criminal Court. None of these measures is unprecedented: the Council has used asset freezes and targeted sanctions with increasing frequency in recent years, and it referred the case of Sudan to the ICC in 2005. But the scope, speed and unanimity of the resolution are remarkable.

At one level, the resolution tries to paint Qadhafi and his associates into a corner. At least in theory, their assets will be frozen and their movements across borders restricted. They face the possibility of international prosecution (assuming the prosecutor ultimately brings cases, which he isn't required to do). One of the debates surrounding the ICC has been whether the threat of prosecution might not--perversely--encourage dictators to fight to the last bullet in an effort to hold onto power and avoid prosecution. This resolution seems to reject entirely that line of reasoning. 

But it is notable that the resolution references (although in a non-operative paragraph) Article 16 of the Rome Statute, which gives the Council the power to suspend ICC investigations if it believes doing so would advance peace and security. It's not immediately obvious to me why a resolution referring a situation to the court would emphasize this provision. It's possible that China, the United States and others particularly skeptical of an untethered ICC simply wanted to emphasize the Council's power to reel in the court. But it could also be a signal that the Council would consider stopping the ICC process in exchange for the peaceful transfer of power. 

Last night, the UN Security Council passed unanimously a resolution imposing an asset freeze and travel ban on Libya’s ruling elite, and also referring the situation to the International Criminal Court. None of these measures is unprecedented: the Council has used asset freezes and targeted sanctions with increasing frequency in recent years, and it referred the case of Sudan to the ICC in 2005. But the scope, speed and unanimity of the resolution are remarkable.

At one level, the resolution tries to paint Qadhafi and his associates into a corner. At least in theory, their assets will be frozen and their movements across borders restricted. They face the possibility of international prosecution (assuming the prosecutor ultimately brings cases, which he isn’t required to do). One of the debates surrounding the ICC has been whether the threat of prosecution might not–perversely–encourage dictators to fight to the last bullet in an effort to hold onto power and avoid prosecution. This resolution seems to reject entirely that line of reasoning. 

But it is notable that the resolution references (although in a non-operative paragraph) Article 16 of the Rome Statute, which gives the Council the power to suspend ICC investigations if it believes doing so would advance peace and security. It’s not immediately obvious to me why a resolution referring a situation to the court would emphasize this provision. It’s possible that China, the United States and others particularly skeptical of an untethered ICC simply wanted to emphasize the Council’s power to reel in the court. But it could also be a signal that the Council would consider stopping the ICC process in exchange for the peaceful transfer of power. 

David Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans. Twitter: @multilateralist
Tag: Libya

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