Can the Security Council Define the Limits of a “Situation”?

by Kevin Jon Heller

Milan notes in a comment to my previous post that he is “troubled that the Security Council seems not to be referring ‘situations’ as much as certain crimes committed by certain actors.”  He is referring to paragraphs 4 and 6 of the SC Resolution:

4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

[snip]

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

I think this is a very important point.  I am not sure why the Security Council included paragraph 6; my guess is that the US wanted to reaffirm its traditional position that the ICC has no jurisdiction over nationals of states that have not joined the Court, even if those nationals commit a crime on the territory of a State Party.  Whatever the reason, there is a strong argument that paragraph 6 is inconsistent with the Rome Statute and should not be recognized by the Court.  Here, in relevant part, is Article 13:

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(b)    A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.

Article 13 is not the picture of clarity, but it seems to suggest that once the Security Council has referred a situation in which at least one crime within the Court’s jurisdiction has been committed, the Court may prosecute any crime in that situation over which it has jurisdiction — even if it was committed by a national of a non-State Party.  That is certainly the understanding of how “situations” work generally, and there is no indication in Article 13 (or anywhere else in the Rome Statute) that Security Council referrals function any differently than referrals by a State Party (Article 14) or proprio motu investigations by the Prosecutor (Article 15).

Nor should they.  Referrals are limited to situations for a reason: because they prevent the referring party (whether Security Council, State Party, or Prosecutor) from using the referral as a weapon against its political opponents.  The Prosecutor must be able to prosecute any crime committed by any party to a conflict for the Court to be seen as legitimate.  Paragraph 6 of the Security Council resolution referring the situation in Libya, if accepted by the ICC, would undermine that basic principle.

It will be interesting to see how the Court reacts to paragraph 6.  In my view, it should hold that paragraph 6 is illegitimate, affirm the Court’s right to prosecute any crime committed in Libya after February 15 regardless of the nationality of the perpetrator, and remind the Security Council that, if it wants to defer the prosecution of a national of a non-State Party, it is entitled to do so under Article 16 of the Rome Statute.

NOTE: As Marko points out, paragraph 6 would only protect a national of a non-State Party who committed crimes as part of a Security Council-authorized peacekeeping mission; it would not cover a national of a non-State Party who was involved in a crime committed in the Libyan situation generally.  (An American mercenary, say, who participated in government attacks on civilians.)

NOTE 2: Dov Jacobs has a very interesting post at his Spreading the Jam blog questioning “the legality of the referral mechanism” as a whole.  Instead of trying to summarize his argument, I’ll simply encourage readers to go read it.

http://opiniojuris.org/2011/02/27/can-the-security-council-define-the-limits-of-a-situation/

19 Responses

  1. Kevin,

    Great post – this is a very important issue of principle. First, just a clarification: op. para. 6 does not exclude all non-nationals of ICC states parties from the referral, but only those non-nationals who participate in “operations in the Libyan Arab Jamahiriya established or authorized by the Council.” In other words, (say) a US mercenary fighting for Gaddafi WOULD be covered by the referral, but a US peacekeeper on a UNSC-authorized mission WOULDN’T. Op. para. 6 applies only to the latter.

    Second, by creating the exception in op. para. 6 the Council is continuing a practice that was insisted on by the US. There is a very similar exception in Resolution 1593 which referred the situation in Darfur. As you say, the legality of the Council’s action is dubious, but its whole point is that the Council continues to assert that it has this power (note also how in the preamble the Council refers to Art. 16 of the Statute, but this obviously can’t be an Art. 16 deferral, as it’s not time limited etc; this is nothing less than a policy of deliberate ambiguity). In other words, the Council (and especially the P-5, and especially the US), is simply hedging its bets for the future, when this purported power may actually be needed.

    (Btw, Rob Cryer has an excellent article dealing in part with this issue under Res 1593 in 19 Leiden JIL 195, at 209 ff.

    Third, even assuming that op. para. 6 is unlawful, I think it is far to easy to say that the ICC can just ignore it. That is one option, but another is that op. para. 6 was the condition for the Council’s consent to a referral, and that without it the whole referral is void. This is in other words the exact same problem that we have with respect to the nullity and severability of reservations (and the ILC and Alain Pellet have produced mounds of paper on this; the latest version supports a rebuttable presumption of severability). One can make an argument both ways, but neither is obviously correct.

    Finally, as to your suggestion as to what the ICC should do about this, I think it unlikely that the Court will rule on this in the foreseeable future. Unless I’m mistaken, there are no UNSC-authorized military missions in Lybia now. If there are any in the future, it is unlikely in the extreme that their members will actually participate in atrocities, or that their prosecution will ever be contemplated. If so, the ICC will simply not have the opportunity to say what it thinks about the Council’s asserted power to exclude certain persons from referred situations.

  2. Marko,

    Excellent points.  I particularly agree that the situation (pardon the pun) is unlikely to arise in the near future.  The severability issue is interesting — and well above my pay grade.  What would happen in the following, obviously fanciful, scenario?  Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him.  The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime.  The ICC prosecutes him, concluding that paragraph 6 has no legal force.  If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?

  3. I agree with Marko’s comment except that I believe the question of whether or not this was a proper referral must be resolved before the Court can exercise jurisdiction over ANY defendant.  This is something the Court probably should have done for Sudan as well.

    Article 13 contemplates three bases for the Court to exercise jurisdiction.  One such basis is if the Security Council refers a situation to the Court.  But the Security Council has arguably not referred a situation.  What it has done is referred part of the situation because the Court is being told that it has no jurisdiction over crimes committed heretofore by an UNSC-authorized military mission in Libya.   Although this would appear to be a theoretical concern because there is no such mission currently, the Statute simply does not contemplate a “partial referral.”

    My tentative view is that the referral was ultra vires. If the Security Council wants to refer a situation it cannot pick and choose what crimes are part of the “situation.”   As Kevin points out, there are good reasons for this because the Security Council referral under Article 13(b) should not be used as a political weapon against enemies and a shield for friends.

  4. Kevin, in your hypo, which presumes the non-severability of the op.para. 6, and the consequent nullity of the referral as a whole, Gaddafi would have been convicted by a court lacking jurisdiction over him. Presumably he would then raise the issue of jurisdiction again, even though it might have already been decided on in his case before – Art. 19(4). If he succeeds, i.e. if the Court buys the non-severability argument, his earlier conviction would have to be quashed. Politically, of course, it would probably be more palatable for the Court to adopt a severability approach.

    In that regard, Milan might have a good point – the very existence of op. para. 6 might be relied on by ANY Lybian defendant in arguing that the whole referral is void as ultra vires. (The same argument might of course also be made in the Darfur cases). In other words, contrary to what I said above, we might NOT need to wait for a peacekeeper to be prosecutor for this issue to be raised before the Court. But again, politically it will probably be much more attractive for the Court to either somehow avoid opening this can of worms altogether, or to rule that impermissible conditions on referrals are severable from the referrals themselves.

    (As for the comparison to reservations, the ILC will probably be adopting a final set of draft guidelines this year; they were adopted provisionally on first reading, and are available with commentaries in a ginormous document at the end of the ILC Analytical Guide on Reservations page; the relevant guidelines are 3.3 and 4.5)

  5. Kevin, Milan and Marko – the concerns you have highlighted with paragraph 6 are certainly valid. My concerns give rise to a different question: what do you think is the effect of para. 6 on mercenaries hired by Gadafi?

    My first thought is that – dependant on countries from which they come – such mercenaries would fall under the para. 6 exception. Is this right? If so, is there a way around this?

    Also, should this reading be correct: surely the issue of para. 6 is far more likely to come before the ICC than initially thought?

  6. Sahib,

    No, op. para. 6 WON’T apply to Gaddafi’s foreign mercenaries. It is confined to nationals of non-states parties on a UNSC-authorized mission. (See above). The provision is drafted in slightly weird way so that crucial qualifier is easy to miss on a quick read.

  7. Sahib,

    As Marko corrected me, paragraph 6 only applies to peacekeeping forces authorized by the Security Council.  So a mercenary fighting for Gaddafi would be within the terms of the referral even if he came from a non-State Party.

  8. Marko and I posted at the same time. (But I was just stealing his ideas anyway.)

  9. Thanks a bunch – the qualifier didn’t jump out. Shall give the Resolution a read today. Have a good day both!

  10. Two points for consideration.

    (1)  The security council could, theoretically, authorize more than peacekeeping operations, though it probably won’t.

    (2)  Art. 103 of the Charter would seem to be potentially important to the Art. 13 ICC Statute issue being discussed here.  If the ICC is properly understood as the agent of the states that created it, and those states are required to resolve conflicting international obligations in favor of their obligations under the Charter (per its Art. 103), then how could those states potentially violate an Art. 25 obligation to comply with a decision of the Security Council in their collective capacity (acting through the ICC) by the ICC declaring its “decision” invalid?

  11. Stated differently (and expressing no view on this as wise policy):

    Para. 6 above is a “decision” of the Council, making it an international obligation of all member states pursuant to Art. 25 of the Charter.

    For the ICC to exercise jurisdiction over individuals it purports to exclude, it would need to declare this “decision” to be etirely invlaid because beyond the power of the Council (unlikely), or invalid to the extent that it is inconsistent with the ICC Statute.

    However, Art. 103 of the Charter requires all member states to resolve conflicting international obligations in favor of obligations created by the Charter.

    All states party to the ICC Statute are also party to the U.N. Charter.  Therefore, I find it hard to believe that the ICC could ignore the international obligation created by para. 6 and Art. 25 or declare it invalid.  It seems to me that it cannot possess an international right or power to do so that its member states do not possess.

    The best it could do, perhaps, is to say that the Council failed to refer a “situation” as it understands that term in the ICC Statute, and therefore that it (the ICC) is without any jurisdiction in these matters pursuant to the referral.  Even then, Art. 103 would seem to require and attempt to harmonize its interpretation of the ICC Statute with its member’s Charter obligations.

  12. With all due respect, I think you’re misphrasing the terms of the debate. When you say that paragraph 6 is “ultra vires” or “unlawful”, you mean in relation to what power or law? From the point of view of the Security Council, it cannot be the ICC Statute, which is not binding on it. From the point of view of the ICC, referrals are not “legal” per se and not binding on the Prosecutor which, as KJH rightly points out in another post, has discretion to decide whether to go ahead with an investigation. As I point out in a more lengthy fashion on my blog, as long as a situation is referred, then any additional “limitation” is not unlawful, it’s just irrelevant, as would be the case in a State referral.

  13. Dov,

    Speaking only for myself, I believe that the referral could be seen as ultra vires from the perspective of the Court.  You are right that the referral is not binding on the Prosecutor in the sense that he cannot be forced to investigate.  However, for the court to exercise jurisdiction over crimes committed in Libyan territory at all, there must have been a referral of a situation by the Security Council.  You seem to believe that the Security Council has referred a situation, notwithstanding the limitation.  My point only is that what you described as a limitation actually undercuts the notion that a “situation” was referred.   It is possible that the ICC might rule, as noted by Kevin and Marko, that this was still a “good” referral and simply ignore the limitation.  But the statute does not contemplate partial referrals or the referral of specific cases – only “situations” so any Libyan defendant would have a colorable argument that the Security Council referral did not vest the court with jurisdiction.

    I did a bit more digging on this, and the Triffterer commentary has a chapter on Art. 13 authored by Williams & Schabas where they note that the Sudan referral may have been invalid for similar reasons to those we have been discussing and suggest that the Prosecutor should have sent that Resolution back and asked for a new resolution without any limitations placed on “the situation.”

  14. Milan,
    Thank you for your answer. I remain unconvinced by the argumentation and respectfully also disagree with Williams and Schabas.
    Again, there is no formal requirement for a referral in the Statute. You seem, as the others, to give a lot of importance to the word “situation”. But it is actually not defined in the Statute, and the case law is quite vague. It says that there must be some territorial and temporal parameters, and it actually envisions that in certain exceptional circumstances, some personal limitations can be accepted, but without giving any detail. All these criteria are difficult to pin down. Some referrals refer to a whole country (CAR) other to recognised administrative internal division (Darfur) and others to vaguely defined regions (Northern Uganda). Also, the Uganda referral actually limited the referral to crimes committed by the LRA. So, in the absence of a clear definition, saying that a “partial referral” is not possible, is like trying to answer the question of the size of a piece of string…

    Of course a defendant could argue anything, but that does not make it a valid argument. Again, based on what provision of the Statute would he challenge the “legality” of the referral? Where is there any indication that referrals are “legal” documents to be challenged and where are the statutory conditions of its “legality”?

    Of course, pushing my reasoning to its limits, I could argue that in fact the limitation is actually possible within the scope of the Rome Statute. However, even if it might change my conclusion that the limitation is irrelevant, it won’t change my conclusion that it certainly is not “ultra vires”, as you put it in an earlier comment.

  15. Dov,

    To follow your argument to its logical conclusion, the Security Council could refer the situation in Libya except for any and all crimes committed by individuals other than Gaddafi personally and this would constitute a referral of a “situation” and would vest the Court with jurisdiction over Gaddafi.

    I think there is certainly a colorable argument that this cannot be.  The challenge is based on the express language of Article 13(b).  The drafters of the Rome Statue specifically chose the word “situation” over other possible terms, precisely to avoid the referral of specific crimes but not others.  You concede that the definition of “situation” is unclear but then claim that it is somehow incumbent on the defendant to demonstrate that there is some unambiguous standard of what constitutes a “situation” and that it was not satisfied here.  But why should the burden be on the defendant when the court would not even have jurisdiction if the Security Council did not refer a “situation”?

  16. Milan, of course I agree with your common sense analysis of what a “situation” should be. I’m just saying I disagree with approaching it from a “legality/illegality” perspective, because referrals are not challengeable legal documents.

    You rely so much on the word “situation”…. You give a lot of credit to the drafters… the “express” language of the Statute does not mean anything if it is not defined. From what I read, they could have easily have chosen the word “matter”, which would have been equally vague. And the reason it is vague, imho, is that it was not meant as a legal qualifier susceptible of judicial control. Referrals are trigger documents and essentially political declarations which, and I stress the point, cannot be “legal” or “illegal”, because there are no criteria of legality in the Statute. Until the Statute is explicitly changed to require specific rules for the content of a referral, I’ll remain unconvinced.

    If a Libyan defendant makes a claim against it, the Court can just dimiss it by saying that that he falls within the definition of the situation as referred by the UNSC. And this would be perfectly in line with the Statute.
    The question is what the Court might do if the OTP were to prosecute a UN peacekeeper from the US, for example. And even then, nobody would claim the illegality of the document, the peacekeeper would claim protection of the Resolution and the Chamber would either say that paragraph 6 is “operable” or “inoperable”.

    Once again, our disagreement is on how we deal with the question of the “situation” given the current ICC framework, not on the ideal definition of a “definition”…

  17. Marko “US mercenary fighting for Gaddafi WOULD be covered by the referral” : happily so for him, enabling him to avoid risking death penalty or Guantanamo-ization.

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