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

by Kevin Jon Heller

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.

http://opiniojuris.org/2012/05/19/can-the-icc-prosecute-nato-for-war-crimes-committed-in-libya/

12 Responses

  1. Great!
     

  2. Isn’t the bigger issue going to be whether there is reason to believe that crimes within the jurisdiction of the court have been committed? The mere fact of civilian deaths doesn’t per se meet the minimum jurisdictional hurdle for an investigation. Is there some reason to believe that NATO forces violated IHL?

  3. First off, I was wondering, does article 103 of the Charter not make this whole discussion rather moot? Seconldy, surely the language of res. 1970 does not go well for those that like to see the gravest of crimes (also possibly committed by NATO states) being prosecuted by the ICC. However, I doubt that the Prosecutor will go against the expressed will of the UNSC and prosecute non-member NATO actions, especially given that the ICC/OTP heaviliy relies on the UNSC when it comes to non-member states.

    Besides, the issue is whether alleged NATO violations are committed in the first place, and on what scale. An interesting coverage by NY times showed possible violations, but these crimes would – given article 8(1) and 17(d) still need to be serious enough to merit prosecution.

  4. From the third report of the ICC Prosecutor to the UN Security Council of 16 May 2012  it appears that the ICC Office is already considering allegations of war crimes committed by NATO.
     
    In that report, the ICC Prosecutor stated the following:
     
    “53. The  Office  does  not  have  jurisdiction  to  assess  the  legality  of  the  use  of  force  and  evaluate  the  proper  scope  of  NATO’s  mandate  in  relation  to  UNSC  Resolution  1973.   
     
    54. The  Office  does  have  a  mandate,  however,  to  investigate  allegations  of  crimes  by  all  actors.  …
     
    55. The  Office  has  found  no  information  to  conclude  that  the  NATO  air  strikes  which  may  have  resulted  in  civilian  death  and  injury or  damaged  civilian  objects  were  the  result  of  the  intentionally  directing  of  attacks  against  the  civilian  population  as  such  or  against  civilian  objects.  The  Office  has  therefore  focused  its  attention  on  incidental  loss  of  life  or  injury  to  civilians  under  article  8(2)(b)(iv).”   
     
    The third report of the ICC Prosecutor to the UN Security Council is available at http://www.icc-cpi.int/menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/reportmay2012
     
     

  5. Of course, I meant the ICC Office of the Prosecutor.

  6. Stuart,

    Because the OTP is already investigating the situation in Libya, there is no gravity threshold for an individual case against a NATO national — just as the OTP could prosecute the Darfuri rebels for a very small-scale attack on UN peacekeepers.

    Marina,

    Thanks for that.  I meant to mention precisely that report but forgot.

  7. Something that I’ve been wondering is whether a SC referral could be so manifestly inconsistent with the Rome Statute that the ICC’s jurisdiction would be able to be challenged?

    That is, how does the ICC justify “correcting” the SC referral to read it as referring to the entire situation if the referral itself is of a more limited nature? Should the referral fail for non-compliance with the Statute?

  8. KJH: “Because the OTP is already investigating the situation in Libya, there is no gravity threshold for an individual case against a NATO national — just as the OTP could prosecute the Darfuri rebels for a very small-scale attack on UN peacekeepers.”

    I was under the impression that ICC jurisdictional requirements require either consent of the State on the territory the crime occurred or consent of the state of nationality of the accused. Jurisdictional authority issues over military personnel are always a sticking point for any state that values sovereignty over its forces. UN troops, for instance, are loaned to the UN Secretariat under the condition that their respective national governments explicitly reserve the right to prosecute and punish their own troops for any malfeasances. Those jurisdictional requirements seemed to be a major selling point for nations to sign on with the ICC in the first place (the US wasn’t the only country to worry about the potential for politically motivated prosecutions). Are UN peacekeeping troops also now subject to the ICC jurisdictional authority, assuming the OTP is “already investigating” a different situation in whichever respective country? Surely there will come a time when the OTP is already investigating some situation in almost any country that would apply (troops aren’t usually sent in until the situation is pretty dire and usually bordering on anarchy) in the world. Might impact the ability of the UN to obtain peacekeepers, which is a hard enough endeavor anyway. 

  9. Response…
    Liz: “consent” of such states is not required, what is required if there is no S.C. referral is that the crime either be committed in the territory of a Party to the ICC or by a national of a Party to the ICC.
    This set of points and questions will be with us in the future — what is the power of the S.C. to override ICC jurisdiction in addition to the power to stop its exercise for a period of time — or does it have such power over the ICC at all as opposed to merely that of the Parties because they are also members of the UN that are bound by lawful “decisions” of the S.C. (see arts. 24(2) and 25, 48)?  i assume that UN 103 binds merely the members of the UN as such and not the ICC.  What “decisoins” of the S.C. would be lawful under arts. 24(2) and 25 of the UN Charter?  Note that the S.C. must serve the various purpose of the Charter, which include human rights.  U.N. arts. 24(2), 55(c).  But what purposes are to have what weight vis a  vis other purposes, etc.?
    Sounds like something ripe for an article or book.
    With respect to the U.N. authorization to use force in Libya to protect civilians and civilian populated areas and the fact that it became reasonably needed to aid in regime change in order to serve such a mandate and the additional fact that the NTC could consent to use of force to aid in regime chainge at a certain point as well as to collective self-defense, see my new article on the Constitutionality of U.S. Participation in the War in Libya–
    http://ssrn.com/abstract=2061835
    Much to continue thinking and writing about!

  10. Might there be a complementarity issue here as well? Wouldn’t you also have to look at whether the alleged NATO crimes were investigated by NATO itself? If the prosecutor was satisfied that NATO policed itself satisfactorily, he need not investigate further.

    One other question, which may betray may relatively low level of understanding of the complexities of international law: If Security Council resolutions carry the weight of international law, does Res. 1970 supersede Art. 13(b) of the Rome Statute? At the very least, could it be a matter for the ICJ to decide if the ICC attempted to prosecute any of the parties that 1970 purports to exempt from ICC jurisdiction? 

  11. Response…
    Dan: it may be that the S.C. cannot directly bind the ICC, a separate entity, except in cases addressed in the Rome Statute (such as suspension of prosecution for a year), but that the S.C. can bind members of the U.N. and that U.N. member obligations under U.N. Article 103 trump inconsistent obligations under any other treaty (per terms of Art. 103).  But this can depend on whether the S.C. resolution is ultra vires, e.g., in violation of the major purposes of the Charter.  See U.N Charter, arts. 24(2) and 25.

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