THE HAGUE, Netherlands – In its nine years of existence, the International Criminal Court has yet to prove itself. Now it has been handed another tough assignment — meting out justice for possible crimes against humanity in Libya.
The court's first trial has been a shambles, it cannot apprehend its most wanted suspects and it has been criticized for focusing too much on Africa.
Yet the order by the U.N. Security Council to investigate Libya marks an achievement for the court, which is still struggling for global acceptance.
The 15 Security Council members unanimously approved the decision Saturday, even though five of them — including permanent members China, Russia and the United States — themselves refuse to recognize the court's jurisdiction and have not signed its founding treaty.
"It is very positive that the ICC is being looked to by the Security Council as a possible tool for accountability," Elizabeth Evenson of Human Rights Watch said Sunday.
Chief Prosecutor Luis Moreno-Ocampo was instructed to report back to the council in two months on his investigation whether Libyan leader Moammar Gadhafi's violent crackdown on anti-government protests featured crimes against humanity.
U.N. Secretary General Ban Ki-moon cited reports perhaps 1,000 have died amid a popular uprising and the government's violent crackdown on Gadhafi critics.
The Security Council move sends "a very strong message to Gadhafi and Gadhafi's henchmen that the violence against civilians that has been reported needs to stop," Evenson added.
The investigation marks another step toward holding authoritarian leaders accountable for the criminal activities of their regimes, a process that started with Yugoslavia's Slobodan Milosevic, who died before his trial could finish. It continues now through the war crimes trials of Liberia's Charles Taylor and Bosnian Serb strongman Radovan Karadzic, whose cases are under way at other international courts in The Hague.
Prosecutors at the ICC will first carry out a preliminary probe to establish if crimes falling within the court's jurisdiction have been committed in Libya. That assessment will include the seriousness of the allegations and whether Gadhafi is likely to face justice in Libya.
The only other time the Security Council referred a case to the ICC was in March 2005, when it called for an investigation into atrocities in Sudan's Darfur region. After a preliminary probe, the court formally opened an investigation three months later and issued its first indictments in April 2007.
The Darfur investigation has been based largely on testimony from refugees forced out of the war-torn region. Like with Sudan, it remains unclear if Moreno-Ocampo will be able to send investigators to Libya to gather evidence while conflicts are still raging.
The new case also will stretch the court at a time when member states are still feeling the pinch of the global economic crisis.
"The court is under pretty considerable budgetary constraints," Evenson said. "State parties will need to make sure that it has the resources necessary."
The Darfur case also highlights the court's Achilles heel — its inability to have suspects arrested. Judges issued an arrest warrant last July for Sudanese President Omar al-Bashir on three counts of genocide, but he has since traveled repeatedly to friendly nations whose authorities refuse to detain him.
The court's first arrest warrants were against the leaders of a Ugandan rebel group, the Lord's Resistance Army, in May 2005.
The shadowy, cult-like group is notorious for kidnapping children and using them as sex slaves and fighters. It also often sliced off the lips or ears of enemies but authorities in Uganda, Sudan, Congo and the Central African Republic have failed to arrest them.
"One of the most difficult challenges for the ICC is to get cooperation on arrests," Evenson said.
Gadhafi's fate now likely rests on whether he can cling to power. If he does, the court is unlikely to get its hands on him; if he is ousted, he could be sent to The Hague, or put on trial by a new regime in Libya.
Even if the court decides to take on the case and manages to detain Gadhafi, it will likely be years before his trial is completed.
The tribunal's first case, against Congolese warlord Thomas Lubanga who is accused of recruiting child soldiers, has been beset by delays and clashes between judges and prosecutors. Lubanga's trial was twice halted and judges rebuked prosecutors for withholding evidence, saying it could deprive him of a fair trial. Arrested five years ago, his trial is still going on.
Another three Congolese suspects also are on trial, including former Vice President Jean-Pierre Bemba, who is charged with atrocities in the Central African Republic.