Can the ICC Prosecute NATO for War Crimes Committed in Libya?

Earlier today, Russia called on the ICC to investigate possible war crimes committed by NATO forces during its bombing campaign in Libya:

The International Criminal Court should look into all cases of NATO airstrikes in Libya that resulted in civilian deaths, the Russian Foreign Ministry said.

“We welcome the decision of ICC Prosecutor Luis Moreno-Ocampo to consider alleged violations of international humanitarian law,” Foreign Ministry human rights spokesman Konstantin Dolgov said in a statement posted on the ministry’s Web site. “We presume that the ICC will consider all cases of NATO bombing that caused civilian casualties.”

The issue of civilian casualties during the NATO Libyan campaign last year had been raised at the U.N. Security Council and the U.N. Council on Human Rights, RIA Novosti reported Friday.

“An impartial international investigation into the effects of NATO airstrikes during Operation United Defender in Libya is necessary to prevent such tragedies in the future,” the statement said.

David Bosco rightly points out at The Multilateralist that the practical likelihood of the ICC taking Russia up on its request is “vanishingly small” — international tribunals have consistently refused to investigate crimes committed by Western powers (the ICTY regarding Kosovo; the ICC itself regarding Iraq).  David also claims, however, that the ICC would be legally precluded from investigating crimes committed by nationals of non-member NATO states (such as the U.S.) by paragraph 6 of S.C. Res. 1970, which purports to exempt such individuals from the ICC’s jurisdiction:

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 respectfully disagree with David here.  In my view, the Security Council’s attempt in Res. 1970 to limit the ICC’s jurisdiction ratione personae is inconsistent with Art. 13(b) of the Rome Statute, which provides (emphasis mine) that “[t]he 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.”  Art. 13(b) makes clear that the ICC investigates situations, not individuals or individual cases — particularly not individuals or individual cases associated with only one side to a conflict.  Nothing in the Rome Statute gives the Security Council the right to revise the Court’s jurisdiction in media res; indeed, Art. 1 makes clear that “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”

This is, of course, not a new issue.  The Security Council included similar language in S.C. Res. 1593, which referred the situation in Darfur to the ICC.  That language led to a superb article by Rob Cryer in the Leiden Journal of International Law (sub. req.) explaining why the Security Council did not have the authority to exempt the nationals of particular states from the ICC’s jurisdiction.  Here is what Rob said at the time about the “situation” issue:

The text of Article 13(b), in particular when read alongside Article 16, makes it clear that a situation may not be limited ratione personae. Article 13(b) reads, in relevant part, ‘a situation in which one or more of such crimes appears to have been committed’. The original ILC draft Statute for an International Criminal Court provided that the Council could refer ‘matters’ to the Court, to avoid the impression that the Security Council could refer individual cases. The final version of Article 13(b) refers to ‘situations’ rather than ‘matters’, as the former term was more general than the latter. The terminology of ‘situations’ is clearly distinct from ‘prosecution’, which was used in Article 16, where the Council was given the authority to intervene in more specific cases. If the Council can only refer situations, rather than ‘investigations’, ‘prosecutions’, and, a fortiori, ‘cases’, then it cannot limit the referral, even by excluding a small group.

The fact that a situation may not be limited ratione personae also appears to have been the position adopted by the Prosecutor. When Uganda first sought to refer itself to the ICC under Article 13(a) of the Rome Statute, the referral was for the situation ‘concerning the Lord’s Resistance Army’ in northern Uganda. The Prosecutor, nonetheless, has opened an investigation into northern Uganda more generally. Article 13(a), like 13(b), refers to ‘situations’, and there is no reason to believe that ‘situations’ was not intended to mean the same thing in both Article 13(a) and Article 13(b).

Rob also critiques the idea that Res. 1593’s preambular reference to Article 16 of the Rome Statute, which permits the Security Council to defer investigations and prosecutions for one year — a reference that exists in the preamble to Res. 1970, as well — means that the exclusionary language in question should be interpreted to simultaneously refer a situation and defer investigations into particular nationals:

The first difficulty is the clearest; the language of the Resolution simply does not support this interpretation. As mentioned above, operative paragraph 6 is not framed in terms of Article 16. Where the Security Council has previously purported to rely on Article 16, such as in Resolutions 1422 and 1487, it has expressly said so in the relevant operative paragraph. Resolution 1593 does not. The only possible support for such an interpretation is the preambular reference to Article 16, yet this is undermined by the wording of operative paragraph 6. Not only does that paragraph not refer to Article 16, but it frames itself in terms of a limitation of the jurisdiction of the Court.

[snip]

Even if this were not the case, operative paragraph 6 is not consistent with Article 16 of the Rome Statute. Article 16 requires the ICC to defer to a request for a temporally limited period. It is quite clear that there is no such temporal limitation envisaged in Resolution 1593, which contains no ‘sunset clause’ for operative paragraph 6.

These arguments are convincing. Paragraph 6 of Res. 1970 might have made non-member NATO states feel better about the ICC referral, but it does not prohibit the ICC from prosecuting their nationals.