Security Council Refers the Situation in Libya to the ICC

by Kevin Jon Heller

The referral is part of a larger set of sanctions against Libya.  From the UN News Centre:

The Security Council today voted unanimously to impose sanctions against the Libyan authorities, slapping the country with an arms embargo and freezing the assets of its leaders, while referring the ongoing violent repression of civilian demonstrators to the International Criminal Court (ICC).

In its Resolution 1970, the Council obligated all United Nations Member States to “freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities” listed in resolution.

The Council imposed a travel ban on President Muammar Al-Qadhafi and other senior figures in his administration, including some members of his family and other relatives.

“All Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related material of all types, including weapons and ammunition,” according to the arms embargo clause of the resolution.

The arms embargo also prohibits Libya from exporting all arms and related materiel, and obligates UN Member States to prevent the procurement of such items from Libya by their nationals.

The Council directed the Libyan authorities to cooperate fully with the ICC in its investigations of the situation in Libya since 15 February 2011, while recognizing that the country is not party to the Rome Statute that created the Court.

In their resolution, members of the Council said that they considered that the “widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity.”

The Council demanded an immediate end to the violence and called for steps to fulfil “the legitimate demands of the population.” It called upon the Libyan authorities to ensure the safety of all foreign nationals and their assets, and to facilitate the departure of those wishing to leave the country

This is the second Security Council referral, but the first — as Bill Schabas notes — that the United States has openly supported; the U.S. abstained from the vote to refer the situation in Darfur.

It will be interesting to see what critics of the ICC say about the referral.  Conservatives in the U.S. like to complain that ICC investigations undermine peace negotiations and provide dictators with an incentive not to relinquish power; our own Julian has argued precisely that with regard to Darfur.  Will they take the same position regarding Libya?  And what about the African and Arab states that have so assiduously criticized the ICC for targeting Africa and for supposedly preventing local justice mechanisms from addressing the crimes committed in Kenya and Darfur?  Will they criticize the Libya investigation on the same grounds?

As readers know, I’m troubled by the extent to which the ICC has focused on Africa.  But this is a Security Council resolution, and all three African countries on the Security Council — Gabon, Nigeria, and South Africa — voted in favor of the referral.  (South Africa’s vote is particularly interesting, given that it has supported deferring the ICC’s investigation in Kenya, much to the consternation of Max du Plessis and Christopher Gevers).  More importantly, though, the referral seems a wholly appropriate response to the unconscionable violence perpetrated by Gaddafi and his henchmen against Libya’s civilian population.  (In case anyone’s wondering, bombing civilians is indeed a crime against humanity.)  I’d like nothing more than to see Gaddafi end up in the dock at the ICC.

UPDATE: The full text of the resolution is available here.

10 Responses

  1. Question: I’ve heard language both in the mass media and from the Obama administration about possible “war crimes” with regard to Libya but is not the proper category, as you state here, “crimes against humanity?” And yet is not the burden of proof with regard to the latter more difficult than the former?

  2. Indeed, with regard to an internal armed conflict, could not we say this arguably fails both parts of the relevant test (assuming I understand this properly): intensity and (especially) organization of the parties? If so, and this is indeed better defined as falling within the rubric of “crimes against humanity,” we have to wonder about the “widespread” or “systematic” nature in this case. Again, some discussion of these issues would be most appreciated! (And I hope my ignorance on these matters is not idiosyncratic or uncommon.)

  3. Patrick,

    Not at all.  I haven’t given the issue much thought, although Marko Milanovic notes at EJIL: Talk! that the text of the SC resolution calls on Libya to respect the principles of IHL. which he interprets to mean that the SC believes there is an armed conflict.  Like you, I’m not so sure.

  4. Kevin,

    I think there is some very real doubt about whether the Libya situation qualifies as an armed conflict, let alone whether the crimes committed are part of a “widespread and systematic” attack on the civilian population.

    In addition, although I obviously want to see Gaddafi answer for his crimes, I have a number of other concerns as well:

    First, is there an admissibility problem because the situation may not be of sufficient gravity? Obviously the SC resolution suggests that the situation is of sufficient gravity but I don’t think the Court is bound to accept the Security Council’s view on this.  We could have another Kenya situation where reasonable judges disagree about what crimes are of most concern to the international community.  (This is not to minimize the situation in Libya, but Gaddafi would certainly have an argument that the Court should not exercise jurisdiction, notwithstanding the resolution).

    Second, will the referral lead to a turf battle down the road between the next Libyan government and the ICC Prosecutor?  One would hope that the Prosecutor would defer or discontinue the investigation if the next Libyan government seems willing and able to try Gaddafi.  However, what if there are real concerns about the impartiality of any Gaddafi prosecution in Libya?

    Lastly, I continue to be troubled that the Security seems not to be referring “situations” as much as certain crimes committed by certain actors.

    “….[N]ationals, 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.”

  5. Well, I’m a critic of the ICC. But I wholeheartedly welcome this referral.

    This is the kind of use of the ICC that could turn me from a critic to a supporter, although there is of course plenty of scope for the Court to accept cases from less appropriate sources that keep me in the skeptic camp!

  6. Milan,

    Great point about the limits of the referral; you’ll see I blogged about that issue earlier.  I’m less convinced by your other points — the contextual elements of CAH seem far stronger in the Libya situation than in the Kenya situation, particularly (thinking of Kaul’s dissent) with regard to the state policy requirement.  As for gravity, I don’t see how Kenya can be adequately grave but not Libya.  (You may, of course, think Kenya is also not grave enough.)  Bombing civilians, attacking mosques, thousand(s) of deaths… that seems enough to me.

  7. Kevin,

    I think you may be right.  I disagreed with the pre-trial chamber’s decision on Kenya, but from what I can discern the situation in Libya seems more grave, particularly in the capital.  But the interesting question for me at least is whether the mere fact that the Security Council has referred the “situation” should satisfy the gravity threshold.  I would think not, but how much weight should the Court assign to the Security Council’s exercise of its Chapter VII powers vis a vis Libya? Obviously this issue did not arise in the Kenya case…

  8. Milan,

    Another excellent point! I’ll have to think about the answer…

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  1. […] about the prospects of investigating crimes in Libya. They have a right to be so. I agree with Kevin Jon Heller at Opinio Juris who writes: “the referral seems a wholly appropriate response to the unconscionable violence perpetrated […]

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