Making Libya an ICC Priority Situation: Fake Promises to a Difficult Customer?

[Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University.]

Exactly one week before the annual meeting of the Assembly of States Parties (ASP) to the Rome Statute, Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), was before the Security Council (SC) presenting her Twelfth report on the situation in Libya pursuant to resolution 1970 (.pdf). As the ASP’s 2016 annual meeting was probably the most important one since the Statute’s entry into force, recent coverage in academic circles has missed the ICC Office of the Prosecutor (OTP) unsuccessful try to bargain with the SC.

In the wake of the recent withdrawals of South Africa, Burundi and Gambia from the Rome Statute, it is obvious that a need for a new strategy is necessary for the Court to remain a relevant – and alive – institution. At the SC 7806^th meeting (.pdf), 9 November 2016, the OTP made clear that it was ready to be flexible in its prosecutorial discretion over which crimes to investigate if this could please the SC. Indeed, the OTP offered to exercise its jurisdictional power against two of the most prominent threats to the P-5 world order, i.e. the Islamic State (aka ISIS, ISIL, or Daesh) and the migrant crisis. However, this commodity came at a price: the SC needs to finance and ensure the security of the Court’s staff.

In return for a more comprehensive framework for OTP to operate in Libya, Bensouda pledged to make Libya a priority situation for next year. Three actions were thus summed up. First, it announced that it intends to apply for new warrants of arrest under seal. Second, it will undertake new investigations and consider bring charges for crimes committed by the Islamic State. Third, it will study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya. In this post, I will tackle the last two issues. I will argue that current crimes committed in Libyan territory are on the verge of falling outside ICC’s jurisdiction.

Crimes currently committed in Libya by the Islamic State

The OTP asserted that her new investigations will consider recent and current instances of alleged crimes committed by the Islamic State. This new focus received a positive feedback from many SC members; in particular the UK, France, Egypt, Ukraine and Venezuela. The Islamic State and other terrorist groups have been active in Libya for a certain period. Already on 12 May 2005, the OTP had declared before the SC (.pdf), that her office “considers that ICC jurisdiction over Libya prima facie extends to such alleged crimes” perpetrated by the Islamic State.

One may question, however, whether crimes currently committed in Libya do still fall within the jurisdiction of the Court. Libya is not a State party to the Rome Statute. The ICC jurisdiction over Libya emerges from SC resolution 1970, adopted on 26 February 2011, under Chapter VII of the UN Charter. In order to invoke its Chapter VII powers to trigger the Court’s jurisdiction under Article 13 (b) Rome Statute, the SC had to, according to Article 39 UN Charter, find that the situation in Libya constituted a threat to international peace and security. In my opinion, the threat noted in SC resolution 1970 constitutes the legal basis and the contextual framework on which the ICC’s jurisdiction over Libya is premised.

The threat to international peace and security, back in February 2011, were crimes committed by Gaddafi’s regime against popular protests and demonstrations taking place in several Libyan cities – as the preamble of the referral indicates. After the referral, the Libyan situation spiraled into an armed conflict between Gaddafi’s and rebels’ forces, accompanied by a NATO intervention. Since then, the Gaddafi regime has fallen and Libya has been into a civil war where security and control by the Libyan authorities have not been achieved. While forces claiming to be associated with the Islamic State have seized this chaos to control part of the Libyan territories, we are very far from the situation that constituted a threat to international peace and security back in February 2011.

In Decision on the Prosecutor’s Application for a Warrant of Arrest against Mbarushimana (.pdf), Pre-Trial Chamber I stated that the ICC can exercise its jurisdiction over repeated times as long as the crimes “are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral.” True, the situation concerning the Islamic State in Libya has been declared by the SC to constitute a threat to international peace and security. However, the initial threat noted in SC resolution 1970 is neither mentioned in the meetings nor in the resolutions condemning the Islamic State’s criminal acts in Libya. Indeed, the situation has changed.

For how long will the ICC jurisdiction extend over the territory of Libya? Like for other trigger mechanisms foreseen by the Statute, a SC referral to the ICC, does not entitle the Court to exercise jurisdiction over a situation ad infinitum. While SC resolution 1970 refers the situation in the Libyan Arab Jamahiriya since 15 February 2011, it does not set an end date. Since the referral does not specify for how long the jurisdiction of the Court ought to or may be exercised, it is left to the discretion of the Court. As I argued elsewhere, to capture within the same situation crimes committed by entirely different actors in a different context than the one initially constituting the situation of crisis at the time of the referral is an overstretch of the ICC jurisdiction over Libya.

Crimes currently committed in Libya against migrants

A further type of crimes the OTP announced it will examine in Libya is crimes committed against migrants, refugees and asylum seekers. One may recall that Gambia in the weeks preceding its official notification of withdrawal (.pdf) said it had been trying unsuccessfully to push the Court to punish the European Union (EU) for the death of thousand of African refugees to reach its shore. The OTP partly responds to this by saying that it will “continue to study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya.” While I doubt that it will find evidences that the EU is committing these crimes on Libyan territory, this new focus on crimes against African migrants passing through Libya pleased the Angolan representative to the SC, who stated ‘In that regard, we consider the ICC to be highly important in Libya.’

For the same reasons as for crimes currently committed by the Islamic State, one might express doubts about the Court jurisdiction over crimes against migrants in Libya. Although such crimes could indeed fit within the jurisdiction ratione materiae of the Court (e.g. crimes against humanity of enslavement), I am unsure that the context in which they are currently committed in Libya is sufficiently linked to the original situation referred by SC resolution 1970.

As the OTP says it in its report, many serious crimes are committed in Libya, ”both conflict and migrant related.” However, one has to acknowledge that on a prima facie basis the migrant related crimes currently committed in Libya do neither involve actors active in 2011 nor are they part of the context that was ongoing at the time of the original situation.

To be sure, I am not arguing that the ICC does not have jurisdiction over any current crimes committed in Libya. Crimes committed by Libyan armed militias and the Presidency Council’s forces are indeed part of the post-Gaddafi transition. Furthermore, both the Islamic State’s crimes and crimes against migrants may be defined as symptoms of Libya’s lack of unified and effective security institutions. Thus, it may be claimed that this security vacuum ultimately results from the threat to international peace and security SC resolution 1970 aimed to repress.

However, it seems to me that a second referral of the situation in Libya would be appropriate for the ICC jurisdiction to be (safely) legally grounded. As an example for the need of a second referral, one may take the case of the Central African Republic (CAR). In December 2004, CAR then-president, François Bozizé, referred (.pdf) to the OTP a situation where “des crimes contre l’humanité et des crimes de guerre relevant de la competence de la Court ont été commis sur toute l’étendue du territoire de la République Centre Africaine à compter du 1er juillet 2002.” The conflict ongoing at the time of the referral was between Bozizé’s forces and the CAR former president from who he had overthrown power through a coup, Ange-Félix Patassé, who was backed by Jean-Pierre Bemba’s (.pdf) then-rebel army. The first CAR referral did not contain an end date, nonetheless the OTP limited its jurisdictional framework over crimes committed between 2002-2003. In May 2014, the transitional government of the CAR – Bozizé had been ousted by Séléka forces in 2013 – sent a second referral to the Court with respect to “la situation qui prévaut sur le territoire de la République Centrafricaine depuis le 1er août 2012”. While one may have argued that CAR II is a continuation of CAR I, it was deemed in this case, that the incidents of 2013-2014 was a situation separate from the one referred by the Central African authorities in December 2004.

The solution to all these jurisdictional conundrums would simply be that Libya ratifies the Rome Statute. If Libya ratifies the Rome Statute, it could refer to the Court the new situation involving war crimes and crimes humanity committed in Libya since the fall of Ghaddafi’s regime. Or, if Libya does not refer under Article 13(a), the OTP could initiate an investigation proprio motu. On the other hand, if Libya does not ratify the Rome Statute, the OTP should try to convince the SC to make a new referral of the current situation in Libya. This would ensure that its jurisdiction over the Islamic State and crimes committed against migrants is not based on a perceptibly faulty legal basis. With Russia’s declared hostility to the Court, the latter option seems implausible.

While the OTP announced its willingness – despite clear legal basis to do so – to prosecute crimes that were in the SC current agenda, no resolution on financing and security for ICC’s staff was adopted at the end of the SC 7806^th meeting (.pdf). If Libya becomes a State party to the Rome Statute, it would allow the OTP to gets out of its bad bargain with the SC. And, in contrast with the SC, Libya will at least contribute to the Court budget.