Libya and the ICC: On the Legality of any Security Council Referral to the ICC

The UN Security Council resolution on Libya has received a lot of exposure in the past few days. Most notable international law blogs have commented upon it. I more strongly recommend Xavier Rauscher's posts over at the International Jurist (here and here), Kevin John Heller's insights over at Opinio Juris, Marko Milanovic's take at EJIL Talk! and William Schabas' thoughts. Given this amount of analysis, I thought I would avoid blogging just to repeat what everyone had said.

but there is one issue that has not been discussed and that is the legality of the referral mechanism as a whole.

As the readers of this blog might know, I remain convinced that the power given to the Security Council, by a treaty other than the UN Charter to effectively make that treaty binding on a non-State party is contrary to international law. I discussed this issue before in relation to the Darfur referral (here and here). You could tell me that I should let bygones be bygones, that the system exists and that I should just live with it. But, I realized I couldn't do so when reading the debate over at Opinio Juris on the "legality" of the following paragraph of the Resolution:

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.

The debate turned around the question of whether this limitation was "lawful" or of "dubious legality" and "ultra vires". And then I asked myself a very simple question? "ultra vires" and "unlawful" in relation to what law or power? It cannot be the ICC Statute, because the UN Security Council is not bound by the ICC Statute, it is only bound by its constitutive treaty, i.e. the UN Charter. And it cannot be the UN Charter, because there is famously no boundaries to the use of Chapter VII. So the UN Security Council can say what it wants and the whole debate actually shows the legal absurdity of the whole UNSC referral system.

Which brings me back to my initial point, the legality under international law of the mechanism as a whole. I cannot see in what reading of the general rules of the international law, the Security Council can be empowered to make a treaty binding on a State without its consent. Even more so if this power does not arise from the UN Charter itself.

If I do play along with the existing system for one minute, I still don't see the problem with paragraph 6 from the ICC's perspective. Kevin John Heller put forward a hypothetical scenario in this respect:

 What would happen in the following, obviously fanciful, scenario?  Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him. The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime.  The ICC prosecutes him, concluding that paragraph 6 has no legal force. If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?

But there are no formal requirements for the content of a referral in the Statute other than the fact that it must be done under Chapter VII. More generally, referrals, whether from States or the UNSC, are not "binding" and don't have "legal force". They can say what they want, and therefore no issues of "legality" actually arise. As long as a "situation" is referred, as defined by the Statute, it only triggers the Prosecutor to move along, and ultimately, his prosecutorial discretion will prevail and any case that arise will be evaluated within the ICC framework based on its jurisdictional criteria. The Prosecutor has said so much in his policy paper on preliminary examinations, where he points out, for example, that he is not bound by a list of possible indictees that a UN report or a truth commission will have set up, or limited to prosecuting one side of a conflict (although this is factually what he has done in Uganda, but that is a different issue). Bottom line, the ICC is not bound by any frivolous extra bits in a referral. Once a State or the UN Security Council has referred a situation, limiting prosecution to blonds with green glasses, or blue men from Mars is not unlawful. It's just irrelevant.
To those who would argue that SC referrals are different that other referrals because they concern non-State parties to the ICC, I would answer that is exactly why you should have refrained from putting it in the Statute in the first place. Once it is in there, the same rules apply in my opinion.

UPDATE: I've continued debating this in the comments section of Opinio Juris, which compels me to make Three extra points here. 1) There is no statutory definition of a "situation" and the case law is quite vague on this issue, so I'm surprised at the over-reliance on this term in the analysis, when the term itself is so empty. 2) more generally, I insist that this is not an issue of legality, in the absence of any "legal nature" of the referral and conditions of its "legality". Referrals are essentially political triggers that don't need to conform to any legal guidelines and previous practice shows that. The Uganda referral mentioned a vaguely defined region ('northen Uganda') and limited the crimes to those committed by the LRA. 3) linked to the previous one, there are other ways of dealing with the issue that the "legality/illegality" approach. To take Kevin's above quoted hypothetical, a Libyan defendant who would contest the referral would just receive the answer that he fits within the limits of the referral. It is only if a UN peacekeeper from the US (for example) is prosecuted that he might claim the protection of the resolution, with the Court considering that the paragraph is either "operable"n or "inoperable".

In conclusion, save for contesting the mechanism as a whole, I think that there is nothing wrong with the SC referral as it stands.

ICTY: an international armed conflict existed in Kosovo during NATO bombings

Today, Trial Chamber II of the ICTY convicted Vlastimir Dordevic for crimes committed in Kosovo. One thing that struck me when reading the summary of the Judgment, is this statement of the Chamber:

In addition, on 24 March 1999 NATO commenced military operations in the Federal Republic of Yugoslavia, so that the Chamber is also satisfied that from 24 March 1999, until the end of hostilities in June 1999, an international armed conflict existed in Kosovo between Serbian forces and the forces of NATO.

To the best of my knowledge, this is the first time that any international court or tribunal has actually legally qualified the nature of the military operation of NATO in Kosovo in 1999. Serbia's case before the ICJ was rejected on grounds of admissibility and the corresponding case before the ECHR was also rejected at the admissibility phase. As for the ICTY, The Limaj and Haradinaj indictments did not cover the NATO bombing period. In Sainovic, despite the indictment covering that period, the Chamber found that: "Thus, there was an armed conflict between the FRY and the KLA leading up to and into the period of the NATO air campaign" (Judgment, §841). Milosevic does not help either, because the 98bis decision only looked at the existence of an armed conflict prior to the beginning of the bombings. Finally, the OTP report released in 2000 which advised against initiating an investigation for NATO actions, makes absolutely no mention of this aspect.

I need to read the full Judgment in order to understand why the Trial Chamber actually felt compelled to make this statement, i.e., whether the nature of the armed conflict actually makes a difference in relation to the crimes charges, or if this finding is merely the chamber straying into obiter dictum territory.

In any case, it's an interesting finding on many levels. Specifically in relation to the bombing itself, it raises once again the issue of NATO's humanitarian law obligations during the operation.
More generally, it puts on the table once again the issue of the impact of external actors on the nature of a conflict. Of course one could argue that this is a case-specific finding, in light of the fact that NATO was not acting under Chapter VII authorization.
On this point, I see in some of the literature a distinction between civil wars where a neighboring State intervenes in favor of one side or another, thus making it an international armed conflict, and international intervention based on humanitarian purposes, by the UN for instance, which is therefore seen as not changing the nature of the conflict because of an alleged neutrality of the third party. The rationale for this distinction is thus a question of 1) political motivation and 2) UN authorization. I would however argue against the distinction.
In relation to political motivation, I believe that political neutrality is a fiction. When the UN, or any other organisation, intervenes to stop a genocide it is definitely taking sides against the perpetrators. It might have legitimate human rights reasons to do so, but one cannot deny that this also has dire internal political repercussions. In this sense, I would disagree with the preliminary finding of the Pre-Trial Chamber in the Abu Garda confirmation of charges that the conflict in Sudan was an armed conflict not of an international character. From the moment that a peacekeeping force is materially preventing two sides to a conflict from fighting, they are factually participants to the conflict.
In relation to the Chapter VII authorization, I don't see how that should have an effect on the nature of the situation, it is only relevant to the jus ad bellum issue of the legality of the intervention.

With this in mind, I would argue that any external intervention in an internal armed conflict, which has a military component to it makes the conflict an international one. In this sense, I would argue that the Court's finding, irrespective of the issue of the legality of the intervention itself, in the absence of a UN Chapter VII authorization, could generally apply to UN-sanctioned interventions as well.

Obviously, one could consider that the point I'm making is not that important, from a practical point of view. Indeed, however one qualifies the armed conflict, the fact remains that outside actors such as the UN consider that they are bound by the substantial obligations of IHL.
But I believe it is a fundamental point for several reasons. For one, we should lose this illusion of the neutral good samaritan. Factually, any involvement in an armed conflict is a political act, irrespective of the motives. Moreover, conceptually, keeping external actors outside the legal framework masks the ever-changing reality of armed conflict, which is, on the one hand increasingly less "international" in the traditional Twentieth Century understanding of the term and mostly internal, but which, on the other hand, and somewhat paradoxically,increasingly and more and more systematically, involves an international component, through various types of peacekeeping operations.
This new reality of international participation in the hostilities should be acknowledged and the application of IHL to peacekeepers should not depend on the goodwill of the organisation, but on their direct applicability of the conventions as a matter of law.
In relation to that, I'm in favor of the end of UN immunity before national jurisdictions, which even covers war crimes, as the Srebrenica case in the Netherlands showed. It is extravagant that the organisation that imposes on countries not to provide amnesties or immunities for international crimes, should protect itself in that way. But it is now me who is straying off topic and into obiter dictum territory...

A comment on why the STL Appeals Chamber should not have rendered its decision on applicable law

Over at EJIL Talk!, Marko Milanovic has posted some first comments on the decision issued by the Appeals Chamber of the Special Tribunal for Lebanon on the applicable law. He points out some interesting issues dealt with by the Chamber in relation to the definition of terrorism, or the modes of liability.

I haven't read the decision yet, but I made a comment on the procedure itself that has sparked an interesting debate in relation to the opportunity of having such a decision in the first place. You can read the debate in the comments section of Marko's post, but here are my arguments laid down in a more constructed fashion.

The Appeals Chamber was seized by the Pre-Trial Judge for it to render an interlocutory decision on a number of issues relating to the interpretation of the Statute. It should be pointed out from the outset that this procedure is not provided for by the Statute itself. It is provided for by the Rules of Procedure and Evidence, which are drafted by the Judges themselves. According to Rule 68(G):

The Pre-Trial Judge may submit to the Appeals Chamber any  preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

The procedure is laid down in Rule 176bis, which provides that:

(A) The Appeals Chamber shall issue an interlocutory decision on any question raised by the Pre-Trial Judge under Rule 68(G), without prejudging the rights of any accused.
(B) Before rendering its decision, the Appeals Chamber shall hear the Prosecutor and the Head of Defence Office in public session.
(C) The accused has the right to request the reconsideration of the interlocutory decision under paragraph A, pursuant to Rule 140 without the need for leave from the presiding Judge. The request for reconsideration shall be submitted to the Appeals Chamber no later than thirty days after disclosure by the Prosecutor to the Defence of all material and statements referred to in Rule 110(A)(i).

I have a problem with this procedure on several levels which I'll briefly expose now:

• Whatever the merits of the procedure itself, from a purely textual point of view, I have a problem with the Judges giving themselves powers that the Statute itself does not give them. For me the whole procedure is ultra vires. In relation to this, I'm surprised that the Judges were given the power to draft the RPE themselves, after the many problems that arose in the ad hoc tribunals in relation to that (ex post facto justification of debatable evidentiary rules, creation of the new offense of contempt, etc.). The ICC rightly chose a different path and I believe it should always be the case Judges not be empowered to draft their own rules. In this sense, I contest the language of the document itself. It cannot be a "decision", and the AC does not "determine" anything. It is at best a consultative procedure and can in no way be authoritative.

• Second of all, from an institutional point of view, I find this is a perversion of the system, which leapfrogs the normal judicial process. Normally, an issue is dealt with after it has gone through the several steps of the proceedings, and reaches (or not) the Appeals Chamber based on the arguments of the parties and the reasoning of the other judges. By going straight to the AC at this early stage, it does not leave room for judicial dissent and limits the scope of opposition, even if an accused can indeed appeal some of the findings. In relation to this, the argument of expeditiousness is misleading. If we follow this logic, why bother with a two-tier jurisdiction at all and not ask the AC what it thinks on everything, to avoid too lengthy a trial? Which brings me to another point: the reasoning just assumes that the AC is always right. But that is not the case. Sometimes, I think it is better for a healthy debate to arise between lower-tiered judges for the case-law to settled, like at the ICC, rather than having the AC bully its opinion from the outset. The whole procedure seems to be a be a little too autocratic.

• From a functional point of view I think it is just not the role of the Appeals Chamber to do what it did. Indeed, I agree that the Statute is a mess and needs clarification, but that does not necessarily mean that the AC should be given the advisory power to deal with that. One commentator on EJIL Talk!, Guillermo Otalora Lozano, referred to other practice by other Courts, both national and international. I quote him in extenso:

First, it is not uncommon for courts to exercise jurisdiction in abstracto. That is how many constitutional courts function in continental Europe and in my own jurisdiction in Latin America. In fact, the Italian Constitutional Court’s main vehicle of judicial review is the “question of constitutionality”, which is a legal question raised in abstracto by a lower judge. When the judge raises the question, proceedings are put on hold until the Court decides on the constitutional issue that bears on the proceedings. In Spain and Germany, parliamentary minorities may have the Courts review legislation on their constitutionality. In Colombia, some types of legislation are reviewed ex officio for constitutionality before the legislation is even enacted. In short, ex ante review is not at all exotic in judicial procedures in the world. It is not a very ‘common law’ way of doing things, but it is not really a rare thing to do in other jurisdictions. Advisory jurisdiction is also common in many international courts: ICJ, Inter-American Court of Human Rights, International Tribunal of the Law of the Sea, to name a few.

This is certainly true, but I fail to see the relevancy in the current case. The Courts in Guillermo's examples are specifically set up for this purpose. And none of them are seized on the interpretation of the law, but rather on its constitutionality, or more generally its conformity with some other norm. I'm no comparative law expert, but I'm unaware of any system where a lower-court would actually go to a higher chamber to ask it to help it for the interpretation of a law (except the ECJ question préjudicielle, but this is very particular and was specifically set up for the interpretation of EU law). The AC is not a constitutional court, it is a criminal appeals chamber. And that is irrelevant of the fact of it being a civil law or a common law approach.
As for the comparison with other international institutions, it is, in my humble opinion, equally beside the point. They certainly have advisory jurisdiction, but as institutions as a whole towards the outside. The AC is an international court in and of itself. The AC is one chamber within the STL with a specific role in that institution. In any case, in link with my first point, if the drafters wanted the AC to be a consultative body, it should have said so in the Statute. It is not for the judges to self-appoint themselves.

I think a common mistake that is made in relation to international tribunals is to forget about functional specificity. We expect them to do everything and are therefore not surprised anymore when they go beyond their function. It is obvious with the ICC, which is expected to be a human rights court, a reparations court and a forum for victims as well as a criminal court. I think such insistence on trying to stuff so many functions in one institution is a recipe for that institute to fail in all its functions, and, most notably in its core one, that of being a criminal tribunal. But I suppose that is another debate...