Inner City Press -- Investigative Reporting From the Inner City to Wall Street to the United Nations

On UN Libya Resolution, US Expert Pushed for Carve Out, Chinese Circus

By Matthew Russell Lee

UNITED NATIONS, February 28 -- Two days after the UN Security Council passed its resolution on Libya, various Council sources told Inner City Press how the resolution came about, and what they did during the three hour lull before voting: attend a Chinese circus.

Countries like India were pushing to hold off on referring the case of Libya to the International Criminal Court, arguing that to make the referral in the first resolution would mean the Council had expended all or most of its ammunition and would have nowhere else to go.

They say that when South Africa and Lebanon, after tearful Libyan ambassador Shalgam's letter, came out in favor of immediate referral to the ICC, the consensus emerged.

The US began insisting on an exemption from the ICC referral for citizens of countries which are not members of the ICC at the Saturday morning “experts” meeting. Brazil had abstained from the Council's referral to the ICC of Darfur, in opposition to American exceptionalism. But this time they went along.

At the February 28 UN noon briefing, Inner City Press asked Secretary General Ban Ki-moon's spokesman Martin Nesirky if Mr. Ban agreed which this carve out from the ICC referral:

Inner City Press: I wanted to ask actually about one aspect of the resolution that was passed Saturday that you are saying the Secretary-General praises. There is a paragraph, paragraph six, in which citizens of States that are not members of the ICC [International Criminal Court] are exempt from… even if the crime, even if their acts were in Libya, they won’t be tried by or investigated by the ICC. Brazil was critical of it; there are some others that have been critical of it. I wonder, does Ban Ki-moon have a view on whether this type of exceptions to the territorial jurisdiction of crimes committed in Libya is a good thing, and is it something that he might raise to President Obama? What is his view of this?

Spokesperson Nesirky: Well, I’ll come back to you on that. As you know, there are two routes if a country is not a State party to the Rome Statute, for action to be taken for the International Criminal Court’s jurisdiction to hold. One is if the country concerned agrees to that jurisdiction. And the second is, as we saw on Saturday, a referral by the Security Council to the International Criminal Court.

Inner City Press: This resolution refers, it refers to Libya, but it expressly excludes from the referral any citizens, like American citizens, let’s say, or Indian citizens or, it would also include Algeria, you know, various other… Ethiopia, countries that are non-ICC members but who are alleged to have some of their nationals fighting with [Muammar Al-]Qadhafi, and so, I just, well, that’s what I am wondering. Sort of a big international law issue.

Spokesperson Nesirky: As I say, if I have anything further on that, I would let you know. I think there is little doubt that the resolution that was passed on Saturday evening was an extremely important one, and I think it sent a very clear message to people, not just in Libya, about accountability and the need to ensure that, as I say, people are held accountable for the actions.

Nine hours later, Ban's office had nothing to say. Meanwhile several Council Ambassadors confirmed to Inner City Press that during the lull in the Council's Saturday meeting on Libya, from five to eight pm, they went to attending a Chinese circus acrobats exhibition, to celebrate China taking over the Council in March.

Chinese Ambassador Li Baodong did not go see the acrobats: he had to call and wait for Beijing's answer on the resolution. But many diplomats of the sometimes circus-like Security Council were literally at the circus in the run up to the vote. Only at the UN.

Footnote: Araud blaming the US position on "parliamentary constraints" seemed to some a way to try to blame a decision by Obama's executive branch on the Republicans who recently took over the House of Representatives. But it was an Obama administration decision. More nuanced apologists blame the Defense Department for pulling rank on State. But the result is mercenaries firing freely.