Saturday night – the UN Security Council, the Libyan people won the night but the International Criminal Court (ICC) captured the moment. More than just this instant, when the Security Council referred LIBYA-Gaddafi to the ICC, it was unprecedented in recognizing the authority of the ICC as an institution of the rule of law and justice and which can play a decisive role in fashioning diplomacy and conflict resolution. For some of us who gathered in the UN Security Council chambers on this Saturday evening and were also present in Rome over a dozen years earlier during the couple of months negotiations establishing the ICC, it was a sense of true transformation . Christian Wenaweser (Ambassador of Lichtenstein and long standing President of State Parties to the ICC/Rome Statute) and I sat next to each other listening to the brief explanations of vote by the Security Council members to discern the clues for the future beyond this night and Libya. Richard Dicker, Director of Human Rights Watch whispered, “momentous moment” almost fearful that saying it too loud might offend the prevailing gods of the Council, as I walked into the Chamber. There was some reason to be concerned that this might turn out to be a moment that would slider away, or at least be marginalized in terms of its implications beyond Libya and the evening. However, almost all of the Security Council members did not want to stand in the way of history or at least be seen as stuck on the wrong side of history. China & Russia: Silence Better Part of Discretion China and Russia were perceived as the greatest risks to the ICC as well as efforts to confront Gaddafi with resolve. They were not signatories to the Rome Statute and had consistently sought to limit the evolution of its authority. However, this time they made no reference to the ICC even as they voted in favor of the unprecedented resolution decisively expanding the future prospects for the Court. Silence was probably seen as the best option in the face of an undeniable surge that they would not try to directly confront with a veto, but also that they would not want to recognize, like a jilted wife sharing family dinner with the mistress. United States: Sincere Embrace from Suffocating Hug & W era Animosity?? The United States was also not party to the ICC. Under George W Bush the US had tried to squelch its development, going as far as coercion and even threats with respect to small states in order to deny the Court support for universal jurisdiction. The Obama Administration had officially sought to reverse course, but there was a definite risk that the US embrace could become a suffocating bear hug, (especially as Washington has tried to define the Court but without committing itself to be bound by the ICC’s authority). Perhaps because of the urgency of Libya or sensing a more durable opportunity, US Ambassador Rice gave ample credit to the role of the ICC as an institution of justice and diplomatic compulsion as she spoke to the Council and afterwards to the press. India’s Lone Faux Pas India was the only state that seemed to miss the change in the traffic signal and rush right in the way of the streetcar. Noting that three of the five Permanent Members of the Council were not parties (as was not Libya), India’s delegation voiced its objection to referring events in Libya to the ICC, presumably outside of the ICC’s geographic jurisdiction. However, the non-party P-3 (China, Russia & US) chose not to take note of India’s invitation to try to more tightly demarcate the ICC’s authority,. Further, the Libyan diplomatic delegation welcomed the ICC’s application of jurisdiction on its territory. It left a few of us wondering why India risked raising to the surface its own parochial concerns rather than remain silently confident that the ICC’s jurisdiction would not reach its territory. Brazil Asserts on Behalf of ICC By comparison, Brazil took exactly the opposite tack. Brazil’s Ambassador Maria Luiza Ribeiro Viotti objected to carve outs in the Resolution. Such did exempt non-state parties’ citizens who somehow may be found on the territory of Libya during the time and geographic scope of this Resolution. UK Architect of Resolution The British were given greatest credit for guiding the drafting of this resolution, and their skill was noteworthy. The UK has dramatically embraced a broader role for the ICC. Germany, as co-sponsor and EU member, was and has been a relatively enthusiastic supporter of the Court. France Envisions an Empowered & Engaged ICC? The French delegation was another pleasant surprise in its broader embrace of the ICC as well as support for the Resolution. In statements to the press, the French Ambassador Gerard Araud, rather than avoid leading questions regarding the ICC’s expanding role, choose to place further emphasis by noting the irreversible transformation in terms of ICC authority and the “message” to other despots, (undoubtedly a reference to Laurent Gbagbo and cronies in the Ivory Coast, among others). Bosnia & Herzegovina Harks to Court’s Inspiration Bosnia & Herzegovina, as ICC party and one of states that helped fashion the Rome Statute (by unfortunate experience of its citizens and our then stalwart diplomatic/negotiating efforts in Rome) provided unreserved support, despite divisions at home and a government still waiting to be formed almost half a year after elections. (BiH’s Foreign Service again deserves credit for not allowing the country to be embarrassed by silence and putting Bosnia’s more positive role forward in view of the circumstances). What Implications for ICC, & International Legality ? – Social Network/Media as Sources for Legal Evidence as well as Political Activism. So what are the concrete consequences for the ICC? A few cascading effects that could flow beyond the immediate horizon: • Other situations, (Ivory Coast, Burma, Colombia?), could be referred to the ICC thereby further expanding authority and tangible role in shaping response to other current/future conflicts. • More states are likely to become parties to the ICC, especially as being a non-member is now clearly not a guarantee to be exempted from jurisdiction. • The ICC is likely to be wooed with greater financial and other resources by some bigger powers – see US – with of course the motive of being fashioned in its development. Regardless, ICC will receive more tangible support/resources. • By exception, situations that are not referred to the ICC by the UN Security Council may come to be viewed as transient rather than transformative in the context of protests and demands for reform – an inevitable comparison will develop explicitly or implicitly drawing conclusions regarding outcomes as well as methodologies to restore order, the rule of law and deliver justice. • Will this have an effect on potential perpetrators in the future, especially as democratic reform spreads? There is already some evidence of that, (but a negative is difficult to prove/confirm). In the case of the P-5 (Permanent Members of the UN Security Council) they can still shield themselves and their favorite allies through veto from referral to the ICC. • Of course, some may fear that the ICC could come to be selectively exploited by the big powers. There is less risk of that (than simply shielding those that may deserve ICC prosecution). ICC referral still requires a positive vote in the UN Security as a whole versus a veto that can block. (The 15 to 0 vote on Libya can be also seen as some sort of precedent although generally 9 of 15 positive votes are generally necessary for adoption). Also, the ICC is not obliged to follow and indict even if a case is referred by the Council. • While much attention has been given to social networks and media as catalysts for action, such can also form a new and highly effective basis for gathering evidence for legal as well political action. This is a dynamic process and UN Security Council Resolution 1970 is a game changer – a set of new dynamics that are both mostly positive and not always readily foreseeable. By Ambassador Muhamed Sacirbey, Facebook at “Diplomatically Incorrect” Twitter at DiplomaticallyX Related Reports at www.warcrimesjustice.com Including: “Interview with Ambassador Christian Weneaweser/President ICC State Parties-Part 1 & 2” - warcrimesjustice.com/films/movie/ambassador-christian-wenaweser-president-of-icc-states-assembly-part-1/19498 “Bill Pace – ICC Coalition Coordinator – Parts1-4” - warcrimesjustice.com/films/movie/international-criminal-court-william-r-pace-part-1-kampala-amendment-conference/20656 Amb. Muhamed Sacirbey “US Fully Embrace ICC – Parts 1 & 2” - warcrimesjustice.com/films/movie/will-us-fully-embrace-international-criminal-court-or-just-a-bear-hug-the-case-for-international-justice-afghanistan-africa-cambodia-colombiavenezuela-bosnia/20917