Legitimacy and Coherence
Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Chapter 5: Complexities in prosecuting international crimes: the ICC Libyan warrants
The ‘Arab Spring’ that took the world by surprise in 2011 and continues to unfold to an uncertain resolution, has impacted in different and sometimes surprising ways on many states and international institutions. An example is the United Nations (UN) Security Council’s unprecedented unanimous referral of the Libyan situation to the International Criminal Court (ICC) then Prosecutor, Luis Moreno Ocampo. In a time frame that recalls the confirmation of the indictment against Slobodan Milo_evic´ et al during the Kosovo conflict in 1999, the Prosecutor quickly determined (in contrast to the tempo of his earlier investigations) that a prima facie case existed against at least three high-ranking government figures. The alleged crimes involved an armed conflict in various mixed urban settings, the besieging of a city (Misrata) and the infliction of terror by the deliberate sniping and indiscriminate shelling of a civilian population, as a means of forcing capitulation. Trials involving such charges, where there is little direct evidence linking high-level perpetrators to a complex crime-base, are technically challenging. They may be protracted by the prosecution’s obligation to establish the link circumstantially – by building up evidence of command and control, including the source of fire, accessibility to the implicated weaponry and so on – and to eliminate the reasonable possibility of scenarios such as an acceptable confusion with legitimate targets, or crimes perpetrated by paramilitaries outside the accused’s chain of command. These crimes are markedly dissimilar to those which have been the subject of the Prosecutor’s earlier investigations, and in that sense will be novel for his investigators and lawyers.
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