Khaddafi Arrest Warrant: Some Thoughts on the arrest "obligations" and Crimes against humanity as the new "crime of crimes"

In my last post, I considered one of the political aspects of the indictment against Khaddafi in relation to the Peace vs. Justice debate.

Today, some quick thoughts on the legal dimension of the request for arrest warrants. The situation in Libya indeed raises a number of interesting issues which I am particularly fond of. I won't delve  into the question of the actual legality of security council referrals. I've said in the past that I was skeptical about the mechanism as a whole, because i don't believe the SC has the power to bind a state not party to a treaty to that treaty, and more particularly discussed the legality of Resolution 1973 here (don't forget to read the comments section, it raises some quite interesting ideas on the extent of Security Council powers. 

I also will not insist on the issue of head of state immunity that is raised here, for the second time at the ICC after the Bashir case. Dapo Akande, over at EJIL Talk! argues that because SC resolution binds Libya to the Statute of the ICC, it must abide by article 27 which removes immunity. Needless to say, given my previous remarks, that I disagree with this analysis. At best, SC 1973 obliges Libya to cooperate with the Court, but within the limits of its international rights and is not bound by the actual content of the Statute.

• Third State obligations in relation to arrest warrants

One notable point that comes up in relation to the request for the arrest warrants is what they would, if granted, require of other states. As I have argued before, I don't believe that the issuance of an arrest warrant automatically creates an obligation for state parties to the ICC to arrest the person in the absence of a specific request under 89(1). Moreover, I have also argued that the general requests to all states under 89(1), irrespective of actual knowledge of the presence of the accused on the state's territory, seemed contrary to the drafting of that article. This argument seemed to me like a shot in the dark, given the practice of the court in wholesale notifications... But apparently the ICC Prosecutor agrees with me (which also means that for once, I agree with the ICC Prosecutor...)! Indeed, in the request for arrest warrants, the Prosecutor points out in the request that : 

65. The Office submits that, if this Application is granted and the Court proceeds to issue warrants of arrest, the Court should exclusively transmit a request for the arrest of the suspects to Libyan authorities.
66. This would conform with the requirements of Article 89(1) which provides “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person”. Addressing a request at this stage to other States on whose territory, according to the information available, the suspects are not physically present would appear superfluous and contrary to the express scheme foreseen in Part 9. 

Dapo Akande finds this position strange, because it suggests that the approach adopted in the Bashir case was contrary to the statute. But I think that the Prosecutor is perfectly right in his reading of article 89(1) and that indeed, the previous practice of the court was contrary to the statute. Apparently, someone at the OTP is reading this blog and some credit would have been nice...

• Crimes against Humanity as the new crime of choice?

A second notable point is the crimes for which the warrants are sought. The "Tripoli Three", as Mark Kersten has aptly named them, would be charged, according to the request, for two counts of crimes against humanity. This raises a number of questions. The first one relates to the question of whether counts of war crimes could also have been possible (see Dapo Akande's discussion of whether there was in fact an armed conflict in Libya at the relevant times for the acts under consideration). 

More generally, I think it shows a recent trend towards crimes against humanity becoming the new ideal crime of international justice. Indeed, it seemed that crimes against humanity had lost their appeal, more particularly in relation to genocide, as the debate surrounding the Bashir arrest warrant showed. But now, it is back in fashion, especially in the new context of wanting the ICC to deal with the "arab spring" and more generally with situations of internal crack down of political opposition. 

Indeed, Crimes against humanity have the benefit of not needing the special intent of genocide (and generally being more adequate for criminal law than genocide, as I've argued elsewhere). Moreover, they don't require an armed conflict, which are usually hard to identify in the situations of popular uprising that we are witnessing now. 

Of course, there still remains the question of establishing the widespread and systematic nature of the attacks (with the corresponding knowledge), as required by article 7(1) of the Statute. But even this is turning out to be not so much of a problem if the threshold is lowered, as was the case in the Kenya situation, thus allowing for systematic human rights violations to be "caught" under the umbrella of crimes against humanity. I had strong doubts about the Pre-Trial Chamber's approach back then, and still do, but if the trend is confirmed, then Crimes against Humanity have found a new youth and may even becoming the new "crime of crimes".

A short Comment on Libya, Hypocrisy and Selective Outrage

I am usually not a big fan of "double-standard" discussions, which are usually the source of endless "why here and not there" debates, which are often ultimately excuses either for inaction or for diminishing the importance of a specific action. But I must admit the current situation (pun intended, see previous post) in Libya does lend itself pretty well to this type of analysis.

For one, the referral by the UN Security Council (extensively discussed from a legal perspective here), begs the question of when a situation rises to the point of justifying a referral. William Schabas raised this point in his own comments:

But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I'm referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

 Although I do not share the typical demagogic singling out of Israel (to stay in line with this post, why mention that situation, rather than an other?), it is a valid question generally. There are a number of situations since the entry into force of the Rome Statute which might have warranted referrals, not just Gaza, but also Ivory Coast, or Sri Lanka, for example. Usually the answer to this is that whoever asks the question is being naive and that it's a question of politics. Maybe. But it doesn't mean that the question shouldn't be asked. In relation to this, and linked to the debate I was having in the comments section of my previous post, I believe that given the extensive power given to the Security Council under Chapter VII, 1) that chapter should be redrafted to provide for clearer safeguards and guidelines on its use, and 2) the UNSC should be reformed to avoid its overtly political use by the veto-wielding powers. I know that is being naive too, but there is no harm in being a dreamer once in a while...

Second of all, the UN General Assembly has voted to suspend Libya from the Human Rights Council. Of course, one can wonder with the International law Prof Blog, why it got elected there in the first place. And it becomes even more laughable when you actually read the composition of the Council. It is presided by Thailand, with its spotless human rights record. Cuba, a paragon of democracy, provides a vice-president, so does Slovakia, a country which has not be singled out by UN Bodies and the Council of Europe for practicing forced sterilization on Roma women. Other members include such such human rights safe-havens as Russia, Saudi Arabia, China and Pakistan. Past members included Algeria, Egypt, Tunisia and Sri Lanka. The members of the defunct Commission on Human Rights all had equally good track records in terms of Human Rights. So the singling out of Libya for a suspension makes perfect sense.

I am not saying that identifying this hypocrisy would justify in any way not reacting to what is happening in Libya. in simple terms, it's not unfair to get caught, just because others haven't. But one must take a step back and reflect on the reasons why a cause gets a spotlight at a given moment, and others do not. Actors on the international scene "choose" a topic and it suddenly enters the zeitgeist. There is a complex sociological web of political actors, NGOs, media outlets which frame priorities and frame minds to look in a certain direction and not another, as the over-emphasis on Darfur and its "genocide debate" or on Israel and anything it does, shows. Not to sound cynical or anything, but some causes sell when others don't. And this applies to NGOs as well, which, in the darker corners of the castles where they put away their shining armors when the night comes, discuss humanitarian markets and compete for them for donations and exposure, in order to sell their own causes as others would sell used cars. But that is maybe a little too cynical, and I'm, once again, straying off topic.

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.