Legal Basis for Prosecuting Gaddafi in the International Criminal Court. (Shocking Development Gaddafi African Mercinaries may receive Immunity from Prosecution)

Legal Basis for Prosecuting Gaddafi in the International Criminal Court. (Shocking Development Gaddafi African Mercinaries may receive Immunity from Prosecution)
I. WHY DID THE U.N. REFER LIBYA TO THE ICC?
Libya is not a signatory to the ICC and as such the court does not automatically have jurisdiction in Libya.
However, the ICC can investigate alleged crimes committed in Libya if Libyan authorities, possibly successors to Gaddafi's administration, accept the court's jurisdiction or if the U.N. Security Council asks the ICC prosecutor to take up the case.
This kind of referral has happened once before, in March 2005, following the conflict in Sudan's western Darfur region. The court has since indicted Sudanese President Omar Hassan al-Bashir for genocide and crimes against humanity in Darfur.
On Saturday, the Security Council did refer the events in Libya since February 15 to the ICC.
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II. Because Libya is not a Signatory to the Internatuonal Criminal Court There are only Three practical ways to assert Jurisdiction:
1. Gaddafi Voluntarily Accepts Jurisdiction: The other option lies in Tripoli itself. It is extremely unlikely that Gaddafi'would ever accept the jurisdiction of the ICC, but a new Libyan regime might. The ball remains in Libya’s court: Ocampo will have to wait and see whether a new Libyan leadership will invite him to investigate the current political violence.
2. New regime in Libya Accepts Jurisdiction
The ICC can only intervene if Libya refuses or is unable to carry out its own investigation into the crimes. Until such times, Mr Ocampo can only wait on the sidelines. If Gaddafi is toppled, a new regime may want to bring him to justice before a Libyan court. Ocampo will only be able to act if Libya’s new leaders are unwilling or unable to take such steps.
3. United Nations Security Council Instructs the International Criminal Court (ICC) to conduct an investigation
On Thursday March 3, 2010 the UN Security Counsel asserted jurisdiction over the Libyan affer by 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 Ghadafi will go to cling to power
Subject Matter Jurisdiction requirement of UN Resolution 1970 .
I. Crimes Against Humanity:
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.
2. Further, the referral is not limited to crimes against humanity and individuals could potentially be charged with other crimes under the Rome
Sttute such as war c rimes (and possible even genocide).
3. I 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.
II. Persons falling within the ICC's Juriction
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”.
Somed have reported that this controversial clause grands African mercenaries hired by the Gaddafi regime to kill Libyan protesters would be immunity from prosecution at the International Criminal Court, for war crimes due to a clause inserted in the UN resolution that was demanded by the United States. which stated that
that anyone from a non-ICC sigbatirt country( tunisia etc.) alleged to have committed crimes in Libya, these people would “be subject to the exclusive jurisdiction” of their own country" and " Such persons might only be prosecuted if their home states waive their jurisdiction. This provision, 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.
The move was seen as an attempt to prevent a precedent that could see Americans prosecuted by the ICC for alleged crimes in other conflicts. While the US was once among the signatories to the international criminal court, it must be duly notied that the US is not a signatory to the international criminal couort because George W. Bush withdrew from it in 2002 and declared that it did not have power over Washington.
III. Time
1. Thirdly, and less controversially, the referral is temporarily limited to events that have taken place since 15 February 2011. ( The Security Council did refer the events in Libya since February 15 to the ICC
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