Wednesday, March 30, 2011

Collateral Damage: Libya, the AU and the ICC

Irrespective of how the ongoing Libyan crises unfolds (or unfurls) over the coming weeks and months, it seems inevitable that it will leave its mark on two nascent institutions both of which hold promise for ensuring a lasting peace in Africa: the African Union (AU) and the International Criminal Court (ICC). Unfortunately, at least insofar as the AU is concerned, Libya might well prove to be its death knell.

When the AU replaced the out-dated Organization of African Unity (OAU) in 2001, it brought with it the promise of a normative shift insofar as regional African politics are concerned from regime security to human security. In the wake of the West’s and Africa’s failure to prevent the Rwandan genocide, the continent’s politicians included within the AU’s founding document the “[t]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity”. Further, the AU Peace and Security Council was established in order to, inter alia, make recommendations to the Assembly regarding the employment of this “humanitarian provision” when war crimes, crimes against humanity and genocide were being perpetrated against the people of Africa. This commitment to prefacing human rights over sovereignty was mirrored in the various sub-regional arrangements which contained similar provisions. However, the failure of the AU to take any concrete measures against Colonel Gadaffi over the past two weeks, and its opposition to the measures being taken by others, will most likely kill off any remaining hope that this provision was anything more than a paper tiger.

That this provision should meet its end in Libya is not without its ironies. Three come to mind:

First, the formation of the AU as a replacement for the defunct OAU – which facilitated the shift to human security and the inclusion of the "humanitarian provision" – was only possible with significant support from Gadaffi himself, just as the continued functioning of the body is largely dependent on the financial support of Libya.

Second, in 2003 the AU adopted a Protocol to its Constitutive Act that provided, inter alia, for the addition of another ground for intervention, namely: a “serious threat to legitimate order” which would allow the AU to intervene to “to restore peace and stability to the Member State”. The inclusion of this ground of intervention was driven solely by Libya who at the time (presciently) envisaged it as a means of guarding against foreign intervention. However, the provision was ultimately phrased in such a manner that makes it the perfect fit for the current Libyan malaise. The Protocol is not yet in force – having been ratified by just under half of the AU member states – however the potential for it to be used as the basis for intervening in Libya, although not realised, remains ironic.

Third, in their fervour to take responsibility for collective security African states have gone so far as to assert that in times of humanitarian crises the AU – as a regional organisation contemplated by article 53 of the UN Charter – can intervene without the authorisation of the Security Council. This bold assertion of autonomy considerably increases the potential for humanitarian intervention by the AU and, until the seismic political shift that led to the passing of Resolution 1973, would have served as the AU’s justification for intervening in the absence of Council approval in Libya had they chosen to do so. The irony is that this autonomy, which not only provided the basis for AU intervention in Libya pre-Resolution 1973 but also strengthened the arguments of other bodies such as NATO for similar autonomy, was proclaimed by the AU in the wake of its disapproval of the UN Security Council’s sanctions imposed on Libya.

Whether the AU as an institution will be able to survive financially post-Gadaffi remains to be seen, what seems inevitable is that the body’s credibility insofar as its commitment to human security will not.

As far as the ICC is concerned, the threat posed by Gadaffi’s fall from grace is less proximate but no less serious. Despite numerous commentator’s creative (and at times morbidly enthusiastic) euphemisms calling for the Colonel’s assassination, the far more likely scenario remains some form of negotiated exit from power that involves political asylum for himself, his family and his inner circle. If that’s to be the case, the likely destination will be an African state (Zimbabwe has already offered such to Ghadaffi, South Africa has an unfortunate history of being a soft-landing spot for Africa’s disfavoured leaders). However, in terms of UN Security Council Resolution 1970 the ICC has jurisdiction over the crimes committed in Libya over the past two months. That investigation, which the Prosecutor (unwisely) has indicated will produce its first “indictments” soon, will more than likely involve request to arrest either Ghadaffi himself or those of his inner circle (including his sons) who will most-likely benefit from the “exit-package” mentioned above. This produces the distinct possibility of another African leader wanted by the ICC being on the territory of an African state, and possibly even a state party to the Rome Statute at that.

The fall-out over the ICC arrest warrant for Sudanese President al-Bashir led to the decision by the AU Assembly that its members shall not cooperate in the arrest of al-Bashir. That decision, and Bashir's subsequent visits to ICC States Parties Kenya and Chad, has brought the relationship between Africa and the Court to its lowest point in both institutions’ short history. Given the increased strain placed on this relationship by the Prosecutor’s investigations in Kenya and the AU’s unfortunate response thereto, it is not by any means clear that this relationship will survive another Bashir-type scenario in the case of Ghadaffi.

Friday, March 25, 2011

The African Union, Libya and the true costs of non-intervention

After a week of military action in Libya by the US and its allies aimed at enforcing the Security Council’s Resolution 1973 – which called for the establishment of a “no-fly zone” and authorised UN members to take “all necessary measures” to protect civilians – African states are starting to find their voice. However, the majority of these voices – including those of the Presidents of South Africa and Nigeria, both of whom voted for Resolution 1973 – has been critical of the intervention. While there are undoubtedly a number of arguments to be made against “humanitarian intervention” generally, and this intervention in particular, as a result of their own words and (in)actions African states are precluded from making most of them.  

Due to the media and political hype inevitably occasioned by such events, distinct arguments for and against intervention are generally conflated and confused. It is important to distil the arguments in order to understand and respond to them.  

The first is empirical. All arguments about humanitarian intervention revolve around the question of whether there are grounds for intervention in the first place (i.e. a humanitarian crisis).   If the empirical hurdle can be overcome arguments for or against intervention become arguments about ends or arguments about means.  

Arguments against intervention based on the ends accept the empirical basis of intervention (a humanitarian crisis) but either do not accept that saving lives is a worthwhile end, or advance some other end that outweighs intervention. Traditionally the competing end advanced against intervention has been state sovereignty: a foundational norm of the international order and the basis of the principle of non-intervention.

The rise of human rights over the past 60 years and the end of the Cold War has undercut the blunt force of sovereignty as an end. More recently, the advent of the Responsibility to Protect (R2P) doctrine has recast sovereignty, at least rhetorically, from being an absolute, intrinsic right of statehood, to being a “responsibility” to protect one’s citizens from crimes against humanity, genocides and war crimes (and the corollary, that a state not engage in such mass violence against its own people). If this responsibility is deliberately flouted, the R2P doctrine stipulates that the offending state becomes vulnerable to intervention from the international community. In the face of these developments arguments against intervention based on competing ends are rarely made openly; no civilised state would reject the protection of human life as an end worth protecting, and few would explicitly present sovereignty or regional stability or (worse still) regional solidarity as a greater end. As a result,most debates about intervention are not about ends (whether intervention is morally justified), but means.  

Arguments about means might accept the humanitarian crisis as an empirical fact and accept that the end of protecting human lives outweighs all competing ends, but would posit that military intervention is not an acceptable means of achieving that end. The argument might run that in general such interventions do not save lives, or that a particular intervention does not result in the protection of human life or that there are some other, better means available to achieve that end.  The debate becomes particularly heated where the means employed to achieve the end results in an unnacceptably high number of civilians lives being put at risk (for example, through high-altitude bombing) – precisely because the means itself begins to undermine the end.  

The type (or means) of legal response is also at issue. A significant amount of debate regarding humanitarian intervention is about: (i) what legal means are available; and (ii) whether there is any basis for arguing for legitimate intervention outside of those legal means. Generally speaking, most international lawyers and academics would accept that the only legal means for intervening militarily to prevent humanitarian catastrophes (as opposed to self-defence) is through the UN Security Council (as through SC resolution 1973 in Libya), and all other military action would violate the UN Charter’s prohibition on the use of force in article 2(4). It is the acceptance of this uncomfortable reality that led some international law experts to argue that NATO’s intervention in Kosovo in 1999 – without UN Security Council approval – was illegal but legitimate, a perilously conditional argument.  

What of the Libyan intervention?  At the outset it is important to notice how two fallacious arguments commonly employed by opponents of humanitarian intervention have been dusted off in respect of Libya. The first challenges the intervention’s legitimacy on the basis of its improper motive. Regarding Libya states have attacked the motive of the US and its allies as being about “petro-imperialism”, geo-politics and anti-Islamic sentiment – and those who would defend the intervention are required to defend the intervening countries’ motives for doing so. Zimbabwean President Robert Mugabe for example has decried the intervention as being about “oil, oil, oil”. These arguments however confuse motive with effect. Few people would argue that Libyan lives are protected because the Americans and their allies genuinely intervened to protect them.  Those lives are protected (or not) based on the effect of the intervention as a matter of fact. That allied countries may have other motives for intervening does not make this the wrong course of action per se, if it is successful in protecting human lives.  

The second argument points to the selectivity of interventions historically to challenge the legitimacy of a specific intervention, and is captured in the refrain “why now and not then”. Ugandan President Yoweri Museveni has criticized the intervention in Libya on the basis that Western Leaders “turn a blind eye to the very same conditions or even worse conditions” in “other areas where there are pro-Western regimes”. Similarly, Nigerian Foreign Minister Odein Ajumogobia reportedly criticized the action in Libya on the basis of inaction in the case of the Ivory Coast. Again, these claims miss the point. These are arguments for other interventions, not against this one.  

Bearing the above in mind, the question becomes what arguments the AU and its members can plausibly raise in respect of the UN-sanctioned intervention in Libya.  

As far as empirical arguments are concerned, there is an overwhelming acceptance from the international community that there is some form of humanitarian catastrophe in Libya. For one, all states (including South Africa, Nigeria and Gabon) that accepted the need for a no-fly zone effectively accepted first, that there is a threat to civilians emanating from Colonel Ghadaffi’s regime and second, that the threat involves the use of air power against them, making it a serious one. In the face of the facts, there have to date been few arguments challenging the empirical basis for the intervention.  

What, then, is the AU’s underlying reasoning? As noted earlier few arguments against intervention that involve competing ends are made explicitly. What is more, by its own standards the AU has little margin for denouncing intervention. Since it replaced the Organization of African Unity in 2001 the AU has tried to position itself at the forefront of the normative shift from state sovereignty to human security. Its founding charter’s “humanitarian provision” – which enshrines “[t]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” – is the most progressive of its kind. The founding instruments of Africa’s numerous sub-regional groupings such as the Great Lakes Protocol, ECOWAS Protocol and SADC, contain similar provisions.    

In the end the only arguments the AU might plausibly raise against the intervention in Libya are ones relating to means. (i.e. that intervening generally, or this intervention in particular, is not an appropriate means of achieving the end of protecting human life). However, once again the AU’s own standards make arguments against intervention based on means difficult to swallow.

First, UN Security Council Resolution 1973 means that the legal arguments about intervention are not available to the AU. In the lead up to Resolution 1973 many African states were arguing that the only legal means of intervening in Libya was with Council-approval, presumably relying on the (seemingly) predictable veto of Russia and China to do their dirty work by killing the Resolution come voting time. Second, and in any event, on more than one occasion the AU has asserted that it does not require Security Council authorisation to undertake interventions under its own “humanitarian provision”. The AU’s legal advisor Ben Kioko has opined that through the inclusion of this provision “[African] leaders have shown themselves willing to push the frontiers of collective stability and security to the limit without any regard for legal niceties such as the authorization of the Security Council”. Up until the evening of 17 March when the Security Council passed Resolution 1973, many African states sought refuge in those niceties.  

Therefore, African states are forced to argue against intervention on some other basis. Absent legal niceties, in order for the intervention to be the wrong course of action the AU must show either: (a) that it does not result in the protection of human life, or (b) that there was some other means available that better protects human life. In the case of other interventions there have been strong arguments that (a) is in fact true. However, at the time the decision was taken to intervene in Libya it seems that concrete action did in fact save lives, at the very least those of the citizens of Bhengazi.  

That leaves (b), the argument that at the time the intervention was undertaken there was some other means available that better protects human life. For example, it might be argued that some form of non-coercive political solution or, failing that, an intervention force that did not consist of the US, France and the UK – three historically compromised actors in the region – would have been a more appropriate means of protecting the people of Libya. The problem is that the African Union was best placed to undertake both of those courses of action and it did not. Not even the AU’s founding instrument - crafted ironically by Colonel Gadaffi and ratified by all African states – was relied upon to intervene to prevent the attacks on civilians. In fact, numerous calls were made for regional action to be taken in respect of Libya. However, all the body could mustre was hand-wringing, politically finessed communiqu├ęs and a belated and compromised five-man mediation panel.  

One may thus rightly conclude that the AU’s humanitarian provision is nothing more than a paper commitment. However, even to those who would argue that regional stability and solidarity are comparable to or even greater ends than protecting human lives, the Union’s limp response to the crisis in Libya further undermines its credibility. African states missed the rarest of opportunities to make these ends meet: to strike a blow against perceived “petro-imperialism” and for human rights simultaneously.

Thursday, March 24, 2011

NICOLE FRITZ: On Libya, SA has done both good and well

[Editors Note: Nicole is director of the Southern Africa Litigation Centre. She kindly agreed to let us post the following piece which first appeared as an op-ed in the Business Day on 23 March 2011]

NO ONE can rejoice at what is happening in Libya. The use of force by states acting under United Nations Security Council resolution — even in defence of civilian lives — still carries with it considerable risk: of costly damage to infrastructure and livelihoods and, worse, of deaths of civilians themselves. But global leadership demands agonising choices and as it is, the council may have stalled too long, waiting until the opposition was almost entirely overrun by Muammar Gaddafi’s loyalist forces before authorising "all necessary measures" to defend civilian lives.

But difficult though the situation in Libya is, it may be one of SA’s most shining moments on the international stage. SA was one of the 10 Security Council members to support the resolution authorising force. Five states abstained. And of those five, four were the founding Bric states (Brazil, Russia, India and China) — a collective in which SA makes a home. Those states abstaining did not wish to thwart the authorisation of military measures, but neither did they wish to be seen as publicly endorsing such action.

SA might well have done likewise: a further abstention would not have endangered passage of the resolution. But global leadership also demands accountability — requiring that states take responsibility for difficult choices, not that they merely hedge their bets and seek to play all sides. SA’s vote would have been particularly hard because it ordinarily finds common cause with emerging powers’ scepticism about military intervention and the enhanced role it provides established powers such as the US. But the resolution contains explicit language likely lobbied for by SA prohibiting any "foreign occupation force of any form on any part of Libyan territory", thus referencing the African Union’s (AU’s) concern for the territorial integrity of Libya and its rejection of any "foreign military intervention".

Certainly SA’s Security Council persona regarding Libya seems at odds with its positions on Myanmar and Zimbabwe when it last held S ecurity C ouncil status. In this most recent resolution on Libya and in the previous resolution, which imposed an arms embargo and asset freeze and referred the situation to the International Criminal Court, it takes the view — principled and uncontroversial — that mass killings of civilians even when confined within a single state’s borders constitute a threat to international peace and security and so warrant s ecurity c ouncil action. It voted against such findings on Zimbabwe and Myanmar.

SA would likely attempt to reconcile these positions by arguing it gives deference to neighbouring states in their assessment of whether the situation rises to the level of international threat: clearly the Arab League’s call for the enforcement of a no-fly zone indicated that the neighbourhood looked to S ecurity C ouncil intervention. Still, SA’s votes on Libya have been fundamentally the exercise of its global leadership in defence of human rights and democracy.

SA has also acted strategically, ensuring not only co-ordination of S ecurity C ouncil and AU actions in respect of Libya but critically salvaging an AU initiative, which looked likely only to demonstrate the moribund nature of the regional grouping. As the Arab League sought to show itself a responsible global actor by calling for a no-fly zone in Libya, the AU steered clear of any such pronouncements — its Peace and Security Council instead dispatching a five head-of-state committee to engage all sides in the Libya crisis. The composition of the mission — in particular the inclusion of Mali, Mauritania and Congo, which are all financially beholden to Gaddafi — suggested robust recommendations for reform were unlikely to be forthcoming and that the AU would appear to be Gaddafi’s club of cronies. In particular, President Jacob Zuma ’s inclusion meant the international fallout for SA might be severe.

Instead, last Thursday’s resolution allowed SA to turn its handicap to global advantage, deftly weaving the Security Council and AU pieces together, saving face for the AU and elevating its role — the council resolution specifically heralds the AU’s high-level committee and its aim of "facilitating dialogue to lead to the political reforms necessary to find a … sustainable solution." Overnight, the AU’s initiatives looked bold and prescient, not craven and concealing, and in managing the transformation, SA underlined its global authority to AU partners.

To use a US idiom, denoting both smarts and substance, on Libya, SA has both done good and well.

Monday, March 7, 2011

A theory of International Criminal Law?

I'm currently attending a seminar on "Thematic Investigation and Prosecution of International Sex Crimes", organized by the Forum for International Criminal and Humanitarian Law, in Cape Town. This morning's session began with an interesting presentation by Margaret deGuzman entitled "Selecting Sex Crimes for Prosecution at International Courts: the Philosophical Foundations of a Feminist Agenda", which considered whether there is a theoretical basis for prioritizing sexual offences in the prosecution of international crimes. Before proposing norm expression - expressivism - as the most plausible theoretical basis for such prioritization, Margaret discussed other theories of punishment: retribution, deterrence, restoration.

During the course of Margaret's presentation, and the responses from other discussants, the ubiquitous question of whether there is a "theory" of international criminal law emerged once again. Margaret argued that the field rests uncomfortably on "incompletely theorized agreements", the contours of which remain contested. She considered the issue from the perspective of determining what the goals and objectives of ICL are, concluding that norm expressivism best meets these goals. For some discussants however, expressivism begs the question as one still needs to select which "norms" are to be given preference within ICL. Other speakers took a functional approach to this question, suggesting that there is no need for a unifying theory for ICL as it works in practice. Further, questions of theories of punishment (and justice) ultimately return to the foundational debates of the Enlightenment.

This is one of the most interesting and unexplored aspects of ICL. I think ICL does need some unifying theory, no matter how tentative, in order to address another difficult question, namely: what is the source of international tribunals' legitimacy? This is particularly important in an African context, where the legitimacy of the emerging system of international criminal justice is under sustained attack. Without some theoretical foundation, or at the very least a set of agreed upon goals and objectives, it is difficult to coherently and consistently address some of the criticisms raised in respect of the ICC specifically and international criminal law in general.

Wednesday, March 2, 2011

Thank you...

A long overdue thank you to David Bosco of The Multilateralist and Kevin John Heller of Opiniojuris for their kind words (and much-appreciated punts) for our fledgling blog. We will try to live up to their expectations.

Tuesday, March 1, 2011

The UN Security Council refers Libya to the International Criminal Court

On Saturday evening the United Nations (UN) Security Council unanimously passed Resolution 1970 (2011), referring the 'situation' in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of Security Council measures directed at the Libyan regime, including a travel ban and asset freezes for Colonel Ghaddafi and his associates, and an arms embargo. It is the first concrete action by the Council in respect of the events that began earlier this month, as increasing reports of widespread attacks on civilians in Libya confirm the lengths to which Ghadaffi will go to cling to power. It is also fitting that Ghadaffi – who has recently been central to undermining the ICC through his political influence in the African Union – should now find his regime’s crimes referred to the Court.

This is only the second time that the Security Council has used its discretion under the ICC’s Rome Statute to refer a matter to the Court for possible prosecution. The first referral, under Resolution 1593 (2005), was made in respect of the situation in Darfur which led to an arrest warrant being issued for Sudanese President al-Bashir for war crimes, crimes against humanity and genocide (he remains at large). Up until the vote on Saturday it was not clear whether China and Russia (states openly hostile to the Court) would allow it to pass. In the end they abstained from using their veto. Of equal significance is that the three African members of the Security Council – Gabon, Nigeria and South Africa – supported the referral, notwithstanding ongoing tensions between African states and the Court over the Darfur and Kenyan investigations. Notably, Resolution 1970 made explicit reference to article 16 of the Rome Statute, which allows the Security Council to defer an investigation by the Court in order to maintain international peace and security. This was included over concerns raised by some states that the referral might become an obstacle to future peace efforts.

Resolution 1970 is interesting in a number of other respects.

First, as far as the subject-matter jurisdiction is concerned the resolution’s preamble states that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity”. However, the Security Council’s reference is by no means binding on the Court, and the Prosecutor will have to investigate, formulate and prove any charges relating to the ongoing violence. This includes the crucial element of the attacks’ widespread and systematic nature, the distinguishing feature of crimes against humanity. Further, the referral is not limited to crimes against humanity and individuals could potentially be charged with other crimes under the Rome Statute such as war crimes (and possible even genocide). In a statement released yesterday the Prosecutor indicated that he is considering opening a preliminary investigation focussing on crimes against humanity specifically, however there is nothing stopping him from broadening its scope should facts emerge supporting additional crimes. In order for war crimes to be alleged however, the situation in Libya must amount to a non-international armed conflict; which the Rome Statute defines as a situation of “protracted armed conflict between governmental authorities and organized armed groups or between such groups”. According to the Rome Statute, this excludes “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”. Again, although Resolution 1970 suggests that the situation in Libya does amount to an armed conflict when it urges the Libyan authorities to respect international humanitarian law (the law that relates to war crimes), the Court will have to make its own determination in this regard.

Secondly, as far as the persons potentially falling with the Court’s jurisdiction, the resolution contains a controversial provision excluding “nationals, current or former officials or personnel” of states other than Libya from the Court’s jurisdiction in respect of “alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council”. Such persons might only be prosecuted if their home states waive their jurisdiction. This proviso, which would apply to any members of an international peacekeeping operation authorised by the Security Council, was included at the insistence of the United States, as a pre-condition to allowing the resolution to pass. It does not however, contrary to media reports, place the alleged mercenaries in Libya outside the Court’s jurisdiction – since they are obviously not acting with the authority of the Council. Further, even though the resolution refers to attacks “against civilians”, suggesting it is only the conduct of the State and its proxies that will be investigated, there is nothing stopping the Court from investigating atrocities committed by anti-government forces. In this regard the reports of migrant workers from neighbouring countries being targeted as mercenaries based on their race is disturbing and could potentially fall within the court’s jurisdiction. Thirdly, and less controversially, the referral is temporarily limited to events that have taken place since 15 February 2011.

What about the prospects going forward?

As with all the other matters currently before the Court, the target of the investigation is an African country, which critics of the ICC will be quick to point out. Like Kenya, the crimes under investigation emerge from an internal political dispute that has escalated rather than a typical armed conflict involving an armed, organised rebel group or insurgency (such as Darfur, DRC, Uganda) or another state (think Georgia or Gaza). Like Sudan, the investigation will have to take place in respect of a state that is not a party to the Rome Statute and despite the government under investigation being overtly hostile to the proceedings. For these reasons, sceptics are likely to conclude that it will result in the same difficulties that have left the Court politically isolated in its region of operation (Africa), without a conviction after 10 years of operation and with increasingly impatient benefactors.

There are however aspects of the Libyan referral that are different. For one, it is surely the earliest the Court has ever become involved in a situation: just over a week since it started. This creates the potential for the Court to act as deterrent for future atrocities, and alter the conflict dynamics in a game-changing manner. For that to happen it is vital that the ICC Prosecutor seize the initiative and move with all deliberate speed to investigate the offences. Moreover, the Libyan regime is one of the most politically isolated – both domestically and internationally – government the Court has yet been asked to investigate. This increases the prospects of states cooperating with the Court to ensure that its orders are carried out. A useful comparison here is Sudan, where the Court became involved in an established conflict, involving a government that had sufficient domestic support to ensure the Court never operated in its territory, and (to date) sufficient regional and international support to prevent its orders, most notably the al-Bashir arrest warrant, from being executed despite legal obligations on states parties to the Rome Statute – recall that Chad and Kenya, notwithstanding their membership of the ICC, allowed al-Bashir to visit their territories in defiance of the court’s arrest warrant . In Libya, the hope is that there may in due course be sufficient cooperation domestically, particularly from the ‘successor’ to the current regime should there be one, and internationally, to secure the arrest and prosecution of those most responsible for the violence.

Finally, the Libyan referral needs to be situated within the broader Africa/ICC narrative. Ghaddafi has been a key protagonist in bringing the relationship to its current low – with the AU ordering non-cooperation in respect of al-Bashir, requesting deferrals in respect of both the Darfur and Kenya investigations, and attempting to amend one of the Rome Statute’s most finely balanced political compromises (article 16). One might be tempted to think he did so presciently, in anticipation that he himself might one day be caught in the Court’s crosshairs – but that would be to ignore his insufferable arrogance that appears to blind him even now to the reality of the situation. Included in that reality is that even for the AU, supporting the Libyan leader in the same manner as they have al-Bashir might be a bridge too far. For one, many African states will be acutely aware of the potential contagion effect of the peoples’ revolution sweeping the north of the continent and the danger of being aligned with the ailing regime. The AU’s silence on the referral to the ICC speaks volumes.

More so, three African states voted in support of the deferral, including powerhouses Nigeria and South Africa, the latter having publicly committed itself to “towing the AU line” in its dealings on the Security Council (can one infer therefore that South Africa’s position mirrors the AU line?). It will now be difficult to take seriously claims that the ICC’s involvement in Libya is a further example of the Court’s unhealthy preoccupation with Africa. Moreover, one can hope that the apparent support within Africa for the Libyan referral might have the unintended but welcome effect of unmasking many of the AU’s ICC positions for what they are: political rather than principled objections.

That hope should not obscure the depressing realpolitik so often at play in these cases. Because the sovereignty and power he wielded for so long appear to be slipping away, there is no real reason for the AU to fight for Ghadaffi. While the AU has kept mum as the Security Council intervenes to demand accountability for the crimes in Libya, make no mistake: the apparent African support for the Libyan referral is because Ghadaffi is increasingly yesterday’s man.

[Note: this is an updated version of the orginal post]