The United Nations Security Council's decision to refer the Libyan leader to the ICC represents a change, not a revolution, writes Graham Usher at the UN With unwonted speed on 26 February the UN Security Council resolved to hasten the demise of Colonel Muammar Gaddafi's regime. It unanimously voted to impose sanctions on the Libyan leadership and refer it to the International Criminal Court (ICC) for alleged crimes against the people. "It is a warning to all leaders who would be tempted to use repression against this wind of change and liberty," said French UN Ambassador Gerard Araud, referring to the anti- government protests rocking the Middle East. "Faced with the atrocities we are seeing, impunity is no longer an option." France, Britain, Germany and the United States had been the main drafters of the resolution. The sanctions include an arms embargo as well as asset freezes and travel bans on Gaddafi, his family and 10 loyalists. They mirror similarly focussed sanctions announced by the Obama administration last week. But the unanimous referral to the ICC is new, said diplomats. The Security Council has only once before referred a state to the ICC: Sudan in 2005 for the conflict in Darfur, a move that eventually led to indictments against President Omar Hassan Al-Bashir for genocide and other crimes against humanity. Non-ICC members China, Russia and the US had abstained on the Sudan vote, wary of extending the reach of international jurisdiction too deeply into the affairs of national sovereign states, including of course their own. But this time all three voted for referral, as did India and Gabon, two non-ICC states currently on the council. The significance of this for international justice is potentially immense, said Richard Dicker, of Human Rights Watch. "It signals that the Security Council as a whole -- including the five permanent members -- accepts the ICC as a judicial means to provide justice for victims of atrocities". It also means "Gaddafi's henchmen are now on notice that if they give, tolerate or obey orders to fire on peaceful protesters they could find themselves in The Hague." What brought about the change? Three factors were key, said diplomats. The first is the potential scale of the violence unfolding in Libya. In an alarming -- some might say alarmist -- report to the UN Secretary-General Ban Ki-Moon painted a picture of a society in collapse, not just a regime. More than 1,000 people had been killed, he said. A food crisis was imminent due to a breakdown of import and distribution systems. And there were accounts of pro- Gaddafi forces killing rebels in hospital beds. Combined with the exodus of 100,000 foreign workers from Libya, these comments spurred particularly the European Council members to move swiftly to a "strong" resolution or be accused by their publics and media of docility in the face of carnage. "In these circumstances the loss of time means the loss of lives," added Ban. The second was the new regional context. The Arab League, African Union and Organisation of the Islamic Conference had all condemned use of military force against civilians, with the Arab League suspending Libya from its sessions. "None of these organisations is known to be front-line defenders of human rights," said Dicker. "Yet all criticised the Libyan regime, taking note of the new mood in the region." This set a marker for a more aggressive Security Council response, he said. But the game-changer seemed to be the intervention of Libya's UN Mission, especially its envoy Abdel-Rahman Shalgham. While condemning the bloodshed in his country, a week ago he had opposed bringing the matter to the UN. "I am Gaddafi's man," he said on 22 February. Three days later he wasn't. Likening his leader to Hitler and Pol Pot he said, "I never imagined that there would be this toll of victims... Gaddafi and his sons are telling the Libyan people: either I lead you or I kill you." Shalgham said he had known and followed Gaddafi for 40 years. "It started with freedom and revolution but ends with the killing of our people. It's finished." He dispatched a letter asking the Security Council "to hold to account those responsible for the armed attacks against the Libyan civilians, including through the ICC". This -- combined with the decisions taken by Arab, African and Muslim states -- was what persuaded China, India and other council members to vote for referral, said diplomats. There is a change in the Security Council, say long-time watchers, but it's not a revolution. The US made sure the resolution exempted their own foreign nationals from ICC prosecution for any alleged crimes committed in Libya. This is to protect US mercenaries, as they have been protected in Iraq, Afghanistan and Pakistan, said observers. Such American exceptionalism was inconsistent with its claims for justice and accountability, said Brazil's UN ambassador and the current council president, Maria Luiza Ribeiro Viotti. Nor was there any appetite on the Council for the imposition of no-fly zones or any other form of military intervention. The phrase "all necessary means" to ensure humanitarian access to the Libyan people was removed in the final draft of the resolution for fear "it could be used as a pretext for invasion," said a Western diplomat. The UN resolution on Libya thus amounts to two things. It shows a gradual, grudging, uneven but growing acceptance by Security Council members of the ICC's universal jurisdiction and the need to hold leaders and regimes accountable for violence committed against their own people. But this acceptance has come as a result of the mass popular movements protesting autocratic governments across the region, not -- as was so in Iraq and Afghanistan -- on the back of imperial armies with neocolonial missions.
