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Monday, February 28, 2011

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.


  1. Good evening Dov.

    I apologize if I am being reductive, but I want to understand your point that "the Security Council can[not] be empowered to make a treaty binding on a State without its consent." If, as you suggest, the UN has nearly unlimited Chapter VII powers, do those powers not include establishing a relationship or connection between some pre-existing international institution and a state in the pursuit of peace and security? Or is the problem not that the UN is establishing a relationship, but that Libya will be required to cooperate and fulfill obligations under the Rome Statute, to which it did not accede? If the latter, would you mind pointing out where in the RS it states that a referred state is obliged to comply. I'm not clear at all that Libya in fact owes any obligations to the Court based on a referral.

    As an aside, and assuming the UNSC does intend for its resolution to oblige libya to fulfill rome statute obligations, I wonder if its possible to consider the Rome Statute in such circumstances not as a "treaty", but as a collection of obligations the UNSC takes "off the shelf" and applies wholesale. In this case its not the SC binding Libya to a treaty, but merely the SC incorporating the text of another document (the RS) in the course of applying its usual Chapter VII powers.

    Spot on re the non-legal effect of paragraph 6.

  2. Thank you Ben for your comments and pointing out the difficulty in identified the exact legal obligations that are created by the SC Resolution. I don't have a clear-cut answer for you.

    On principle, I would indeed say that Libya has no obligations under the ICC Statute, even with the SC referral. I do think that, even given the wide range of Chapter VII powers, it goes beyond those powers to make a treaty binding on a non-signatory.

    The Resolution itself is ambiguous, as you can see:
    "5. Decides that the Libyan authorities shall cooperate fully with and provide
    any necessary assistance to the Court and the Prosecutor pursuant to this resolution
    and, while recognizing that States not party to the Rome Statute have no obligation
    under the Statute, urges all States and concerned regional and other international
    organizations to cooperate fully with the Court and the Prosecutor;"

    So Libya must cooperate fully with the Court... but doesn't have any obligations under the Rome Statute. This actually would tend to validate to a certain extent your last possibility, that Libya is bound to respect requests from the ICC, not through operation of the Rome Statute, but through operation of the SC Res. In a sense, following this logic, I agree that this could be seen as a possible application of Chapter VII powers : it could theoretically adopt the whole Rome Statute as a chapter VII Resolution, ICTY/ICTR style, and make it binding on all members of the UN.
    But that would be quite different, because it would be for the future rather than retroactive (for the record, I think the post-hoc creation of the ICTY and ICTR were in violation of the principle of legality). As things stand with the ad hoc SC referrals, it still seems to me to be making a State bound (even if indirectly) by a treaty it didn't sign, and that bothers me.

    For the record, I'm against the mechanism, not the result. For me it would have been legally possible and acceptable (beyond the political/diplomatic considerations) for the drafters of the Rome Statute to give the Court universal jurisdiction. If one agrees with the delegation theory of international jurisdiction (as I do), because each State can adopt national laws of universal jurisdiction, they can together give such a jurisdiction to an international Court they create. It would have been a far more legally acceptable (and courageous) solution.

  3. Thanks for the reply Dov. Its nice to see I wasn't the only one awake too late last night. :)

    Two thoughts. First, I wonder if the scope of cooperation required under UNSC para. 6 is the same as the scope of cooperation required by the Rome Statute. Surely, for example, Libya would not be expected to cooperate by funding the Tribunal as a non-member state, whereas State Parties operate under such a requirement (i'm aware this is addressed specifically in the UNSC sanctions resolution, its just the first example that springs into mind). Second, I agree that the transfer raises some nullum crimen questions. I wonder where the limits of the UNSC's power to compel states to cooperate with dispute resolution mechanisms are. If two states were involved in a trade war, for example, and for whatever reason the UNSC became seized of the matter and felt it necessary to exercise Chapter VII powers, I think it could certainly require, under penalty of sanction, both states to resolve the dispute before a WTO dispute resolution body (even if neither state was a signatory to the WTO Agreement). I cannot imagine that the UNSC does not have the ability to take advantage of existing institutions that have already collected necessary expertise, and send states there. Why does this seem more palatable with respect to states than to the highest state authority?

  4. Good morning Ben.

    In relation to the cooperation obligations, I would expect that they would be those that stem from Part 9 of the Statute, in terms of access to information and surrender of defendants for example. I'm not even sure that there is a funding obligation in the Statute, other than some vague reference to the ICC's budget.

    As for your WTO hypothesis, other than the issue of whether the WTO panel would actually have jurisdiction, you won't be surprised if I tell you that I don't think that the UNSC can/should actually do that. Again, the problem is that Chapter VII has no clear limitations, so I'm hard pressed to pin down why it cannot in fact do it.
    But it is a question of systemic analysis. The UNSC is a body within the UN framework and its power cannot go beyond that framework and compel States to abide by rules from outside treaties or bodies.
    More generally, this whole Chapter VII business has gotten out of hand from its original rationale, which was to avoid another invasion of Poland, not decide the freezing of assets of a specific individual, or sanction the transfer (literally, the transport) of Charles Taylor from Sierra Leone to The Hague.

    But I'll admit that's me being extremely "old school" on the workings of international law...

  5. Dov,

    I'll focus on your perspective on the entire system, and leave the discussion on paragraph 6 of Resolution 1970 for another time, considering I have already explored the issue in my own post you so kindly linked to.

    I understand your point, and know where you stand on these issues. But I think your point of view, although perhaps not necessarily legally unsound (your interpretation does not seem less valid than any other), is simply not functional and does not reflect the spirit of either the UN Charter or the Rome Statute.

    The way I see it, Article 13(b) that grants the UNSC the power to refer a situation to the ICC is the logical integration of the past practice of the Security Council in creating very resource-intensive ad hoc tribunals into a permanent system, namely the Rome Statute system.

    Considering Article 24(2) of the UN Charter, I think it's sound and functional legal reasoning to "make the Rome Statute" binding on non-State parties through Chapter VII resolutions. It's the same reasoning than creating an ad hoc tribunal, but instead of doing that, you delegate those functions and powers to an existing institution - the International Criminal Court.

    I'll even go further in provoking you and argue that I wouldn't be too bothered should the UNSC one day refer a situation to the ICC that existed prior to 1 July 2002: it would amount to creating an ad hoc tribunal ex post facto (which, admittedly, do bring up other legal issues I won't get into now), but delegating those functions to the ICC in a combination of resource-efficiency and good administration of justice (less proliferation of international courts, less risk of conflicting jurisdiction, etc.)

    I don't count on seeing it happen, but besides considerations regarding non-retroactivity, I don't see any major legal obstacles for it to exist.

    To conclude, I believe the current mechanism in place to allow the Security Council to refer a situation in a non-State Party to the ICC is legal, reflects established UN practice since at least 20 years, and is functional.

  6. Xavier, thank you for taking the time to answer my issues. I take your point, as I took Ben's. And I do acknowledge that I have a somewhat "old school" approach to international law. For example, I personally think that the creation of the ad hocs through Chapter VII was in violation of the principle of legality and went beyond, to take your expression, the "spirit" of what the drafters had in mind when drafting Chapter VII and the powers of the Security Council. I also think that the powers of the Security Council cannot be interpreted as allowing for the violation of a fundamental principle of international law, namely that treaties can only be binding through State consent.

    Now, if I do play along, I think you'll agree that if the Security Council is indeed going to be given such extensive powers, a question of accountability arises. Because, in the traditional saying, who watches the watchmen? the question arose acutely in relation to targeted sanctions (eg, Kadi). In other words, Chapter VII must be redrafted to be more precise, and there must be some judicial control of Security Council Resolutions to insure the legitimacy of the institution and to avoid any abuse.

    On a more technical point, I actually think that your example of a referral predating the entry into force of the Statute would not be possible. Indeed, if the article 12 jurisdictional pre-conditions of nationality and territory are explicitly excluded for SC Referrals, this is not the case for the temporal jurisdiction under article 11. A Judge reviewing jurisdiction under article 19(1) would therefore be bound by article 11 and have no discretion in this matter. But I thank you for the provocation nonetheless :)

  7. If you consider that the creation of ad hoc tribunals was a violation of the principle of legality, than you are indeed consistent in your line of thought, which makes it even more respectable.
    Not that I want to engage in gratuitous flattery, but even though I am of a more "progressive" school of thought, I do believe "old school approaches" have their value, not least of all in keeping us "dreamers" on our toes with the law.
    After all, before being a "progressive" (for lack of a better word) I am a jurist, and a French one at that, just like you, and therefore deeply attached to the principle of legality.

    I must also say that the second paragraph of your answer is of particular interest to me. I think it has become more and more obvious that at the center of several controversies surrounding the ICC is not so much the Court itself is the Security Council, and its role in guaranteeing peace and security. Reform of the Council will need to go much deeper than just its composition. In this, I am sure we agree, and the issues that have arisen in Kadi have caught my attention, and my concern.
    That being said, if wishes were fishes...

    Lastly, because I do not admit defeat by the "simple" invokation of Article 11 of the Rome Statute, I will submit to your expertise a hypothesis:

    Imagine for a moment that the Security Council wishes to establish an international court to try those responsible for the crimes reported in the recent "Mapping Report", crimes that were committed prior to 2002.
    Let us imagine that the Council votes a resolution that constitutes itself a Statute for an international tribunal with a mandate for these crimes, just like the Council did in 1993 for Yugoslavia and 1994 for Rwanda.

    *Except* that this Statute provides that its enforcement will not go to a newly created entity such as an ad hoc tribunal but to the ICC, a permanent institution.

    Waving any opposition on the grounds of the principle of legality - for the sake of argument, let us consider that the creation of the ICTY and ICTR constitute irrevocable precedents - what obstacles do you see to that?

    What say you, Mr. Jacobs?

  8. I'm happy to keep you on your toes and that we agree on the UNSC accountability issue.

    As for your hypothesis, it depends on the how one interprets the mechanism you envision because I'm not quite sure how what you say would work.

    possibility 1: if by "enforcement" you mean that the source of authority would be the newly created Statute, but that only from a logistical perspective the ICC would "outsource" just its personnel (judges, prosecutor and building) to the newly created institution, then I would have no problem. 1) it would require an agreement between the UN and the ICC, because the ICC would not directly be bound by the UNSC Resolution and 2) technically, we would have two institutions, the judges occupying at the same time two functions: judges of the ICC and the judges of the new ad hoc tribunal. So technically, you're not really dealing with the problem of Article 11, by creating a new institution with overlapping personnel. In any case, if the ICC is ok with this outsourcing, then I am too.

    Possibility 2: the new ad hoc Statute would send the enforcement to the ICC as a discrete institution, and then the problem still arises, because the judges, which draw their authority from the ICC Statute would be bound by that Statute, not the UNSC Resolution, and again, would not have any discretion in discarding the application of Article 11. In addition, from a practical point of view, I'm not sure how you would articulate the two Statutes in this case scenario. Which one would set out the crimes? which one would set out the out the procedures for indictments and the general rules for pre-trial proceedings? Which ones would set up the rules of evidence? Which one would set up the trial proceedings? I think you get my point...

    More generally, and while we're proposing innovative solutions to circumvent the limitations of the Statute, as I said in my response to Ben, and setting aside my qualms about the limits of the powers of the security council AND issues of legality, it would be possible for the SC to adopt the whole Rome Statute as a chapter VII Resolution without any time limitations. Problem solved!
    How do you like that option Mr Rauscher?

  9. My thoughts were along the lines of possibility 1.

    That being said, your concluding paragraph definitely hits the nail on its head about just how far we're ready to see the Security Council go. And as I mentioned previously, I think we both agree on that issue.