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