Does the U.S. Have An Exemption from the ICC’s Jurisdiction for Actions in Libya?

by Julian Ku

Expect to hear more of this in the next few days from the anti-Obama progressive left.

NATO commanders who authorized the Libya bombing campaign should be “held accountable” to international law and hauled before the world court for civilian deaths, Rep. Dennis Kucinich (D-Ohio) said Tuesday.

“NATO’s top commanders may have acted under color of international law, but they are not exempt from international law,” Kucinich said in a statement released by his office. “If members of the Qadhafi regime are to be held accountable, NATO’s top commanders must also be held accountable through the International Criminal Court for all civilian deaths resulting from bombing. Otherwise, we will have witnessed the triumph of a new international gangsterism.”

Kucinich is not to be taken seriously about any matter and I deeply hope he is re-districted into political oblivion soon, but he does raise an interesting legal question.  NATO commanders from Europe and Canada are already subject to the ICC’s jurisdiction.  But what about any U.S. commanders who might have participated?  Well, maybe I missed all of this discussion when I was in China, but I think they have an exemption from the ICC that was built into the UN Sec. Council Resolution 1970.

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;

It’s a confusing paragraph, but it sounds like it says any state not party to the Rome Statute, but which has acted pursuant to the Security Council’s authorization in Libya, will have exclusive jurisdiction over its own nationals for acts or omissions in Libya.  Hmm…I wonder what State that is not a party to the ICC was deeply involved (even if from behind) in the Libya intervention?  Very clever, those U.S. State Department lawyers, especially because they were at the same time arguing that the U.S. is not actually engaged in hostilities in Libya.  And nice job laying down a precedent for any future UNSC authorized actions.  President Romney/Perry/Palin/Paul/Generic Republican will be very appreciative, I’m sure.

http://opiniojuris.org/2011/08/24/does-the-u-s-have-an-exemption-from-the-iccs-jurisdiction-for-actions-in-libya/

12 Responses

  1. The idea that stating that NATO military action should be subject to the same laws as those against whom NATO fights is something that should not be taken seriously is the sign of nothing less than a blinkered world view. It becomes a sign of pathology when one considers the implicit suggestion that Kucinich is less worthy of being taken seriously than any of the names listed at the end of the post (including “Generic Republican” as that term has come to be defined since the Bush era, and even more so since the rise of the Tea Party). Otherwise, interesting post.

  2. I agree entirely with David – whilst the Representative’s grasp of the substantive content of international law is shaky (i.e. anyone with a basic knowledge of IHL would know that it doesn’t provide an outright ban on the killing of civilians, and as you point out, SCR 1970 does appear to provide the US with exemption from ICC jurisdiction), the basic proposition, which is the most important sentiment of his statement, that NATO commanders must adhere to international law and be held responsible and accountable for actions under international law if and when violations occur, cannot be disputed. To suggest otherwise, as the Representative said, would amount to advocating international gangsterism and would undermine the some of the basic tenets of the rule of law.

  3. Heller said   “Kucinich is not to be taken seriously about any matter”.  Kevin wasn’t saying that this specific statement about NATO shouldnt be taken seriously.

    David and HM, please report to a school near you for a reading comprehension refresher course.

  4. held accountable for what? for all civilian deaths? has Kucinich ever heard of proportionallity?
    if there was something wrong that happned, then yes they should be prosecuted. but what evidence has he presented?

  5. I agree that it is adroit drafting which is the price paid for getting the US in the game.  As to Kucinich, given the craziness we have heard from so so many people on the right on international law, I think he gets a pass.  After all, he did not start a war on false pretenses nor put in place a torture regime.
    Best,
    Ben

  6. Response…
    How does the Security Council have authority to “decide” this — which involves the juridsiciton of the ICC and, if an accused from a non-party was turned over to the ICC, would be something entirely beyond a breach of the peace, act of aggression or threat to the peace?  How can the Security Council control the jurisdiciton of the ICC, especially since such an attempt was made during the drafting of the Rome Statue and was rejected?  Where in the Statute of the ICC is there an overarching veto power of the S.C.?

  7. Jordan,

    How can the ICC assert jurisdiction over the United States when the U.S. has never consented to its jurisdiction other than through Security Council referral?

  8. I believe that there was a related discussion on this topic when the SC first referred the Libya “situation” http://opiniojuris.org/2011/02/27/can-the-security-council-define-the-limits-of-a-situation/

  9. Response…
    Newstream Dream: I suspect that you mean how can the ICC have jurisdiciton over a U.S. national?  In any event, it can, for example, if the crime that is otherwise within the jurisidiciton of the ICC (e.g., under arts. 6-8) was allegedly committed within the territory of one of the 115 parties to the treaty (e.g., art. 12(2)(a)).  For example, since Afghanistan is a party, George Bush, Dick Cheney, Donnald Rumsfeld, et al. could find themselves before the ICC some day (esp. since complimentarity is not an issue when Obama refuses to let Holder go forward with meaningful investigations).

  10. Cramga – I wouldn’t ordinarily get pedantic, but since you brought up the subject of ‘reading comprehension refresher courses’, I suggest you take another look at the author of the post since it’s Julian Ku, not Heller, as you stated in your comment.

    As for the massively sweeping statement that  ’Kucinich is not to be taken seriously about any matter and I deeply hope he is re-districted into political oblivion soon’ as well as the disparaging tone of the post in general – I think it is not too unreasonable to infer that the author was suggesting that the Representative’s statement, as the subject matter of the post, should also be not be taken seriously – if it was not to be relevant to the Representative’s comments on NATO, why was such a statement made?
    As has been pointed out, including by myself in my original comment, the Representative’s accuracy on substantive points of law leaves a lot to be desired – but given the glaring errors which speak for themselves, I see little reason to include the statement made and the tone taken other than to discredit completely anything that the Representative might have to contribute to the discussion. However, I believe the general point being made by the Representative, that NATO must equally comply with international law and held equally responsible when violations occur, is perfectly valid, indeed important.

  11. Operative paragraph 6 of Resolution 1970 purports to grant exclusive jurisdiction over non-Libyan nationals of countries that are not ICC States Parties to the courts of their nationalities, subject to waiver. This closely tracks operative paragraph 6 of the Darfur resolution, 1593. It should be noted that under the UN Charter the Security Council can give orders to UN Member States but cannot bind other international organizations. As such, the ICC could ignore this provision, though it would likely try to avoid this situation.

    http://amicc.blogspot.com/2011/02/amicc-analysis-of-un-security-council.html

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