Recent US airstrikes against ISIL targets in Libya raise an intriguing question: does the International Criminal Court (ICC) have jurisdiction to investigate and prosecute US actions there? Ultimately it may depend on whether the United States can safely rely on an exemption from the court’s jurisdiction that was included in the UN Security Security Council Resolution granting the ICC authority in Libya.
In February 2011, UN Security Council Resolution 1970 referred the situation in Libya to the ICC. Although the UNSC referral was motivated by the violent crackdown on civilian protesters by Gadaffi government forces, the grant of jurisdiction covered any ICC crimes (war crimes and crimes against humanity in this case) arising from the conflict. Resolution 1970 contained, however, an important jurisdictional carve-out for non-ICC States (aside from Libya itself), including of course the United States:
[N]ationals, 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 ….
Authorization for military force in Libya came a few weeks later with the adoption by the Security Council of Resolution 1973. It established a “no-fly zone” over Libya and authorized the use of force to protect civilians:
Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council.
NATO forces relied on this broad grant of authorization to attack Gadaffi forces, ultimately leading to Gaddafi’s capture and contributing to the overthrow of his government.Russian, Chinese, and South African government officials complained that in achieving regime change, NATO forces exceeded the mandate granted by Resolution 1973. But onelegal commentator sympathetic to this complaint had to concede that while NATO forces may have violated the “spirit” of 1973, its actions were not “blatantly illegal” as NATO could argue “that protecting civilians required disabling Libyan ground forces and their leadership.” And a political science commentator doubted whether Russia, China, and South Africa were genuinely surprised by the actions NATO took following the Security Council vote.
Turning to the Court, the ICC has indicted two individuals in connection with crimes committed under the Gaddafi regime. At the same time, it continues to assert jurisdiction over Libya on the theory that the crisis that occasioned the grant of authority in Resolution 1970 has not been resolved. In particular, in its last report to the UN Security Council on Libya, presented in May of this year, the ICC Prosecutor said that her office was especially concerned with allegations of crimes against civilians attributed to ISIL, which has been present in Libya since 2014. If the OTP presumes that the ICC can assert jurisdiction over ISIL actions in Libya, could the ICC likewise claim to have jurisdiction over the United State’s counter-ISIL operations? (For this post, we do not directly consider whether the ICC is correct in its assessment that hostilities between ISIL and government forces are part of the same “situation” contained in the Security Council referral. We leave that discussion to another day.)
The answer to whether the ICC would have jurisdiction depends, in crucial part, on how one interprets the jurisdictional carve-out for non-State parties in Resolution 1970. Remember that the carve-out applies only to “alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council.” (emphasis added).
Read the full post at Just Security.