Referring Libya to the ICC is blatant hypocrisy

Libya is not a party to the International Criminal Court (ICC) and does not accept its jurisdiction. In this respect, it is no different to about 80 other states in this world, for example, the US, Russia, China, Israel and Sudan [1].

But on 26 February 2011 the Security Council voted unanimously, in Resolution 1970, to refer Libya to the ICC. To be precise, it decided

“to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;” [2]

Amongst those states who voted for this referral were 5 states – China, India, Lebanon, Russia and the US – who are not parties to the ICC and don’t accept its jurisdiction. This is blatant hypocrisy.

Writing in the Irish Times on 12 March 2011 about US support for this referral, Siobhán Mullally, a senior lecturer in international law at University College Cork, said:

“This support reflects the Obama administration’s policy of positive engagement, a welcome reprieve from the Bush administration’s open and hostile opposition to the court.” [3]

What planet does she live on? What is positive about the US forcing Libya to accept the jurisdiction of the ICC, when it refuses to accept the jurisdiction of the ICC itself?

Sudan

This referral by the Security Council of “the situation in the Libya” to the ICC closely parallels the action of the Council on 31 March 2005, when it passed resolution 1593, which decided

“to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;” [4]

Like Libya, Sudan is not a party to the ICC. On this occasion, the US and China abstained, but 3 states – Philippines, Russia, Tanzania - which don’t accept the jurisdiction of the ICC voted for it.

As a result of this referral, the ICC charged the President of Sudan, Omar Hassan al-Bashir, with genocide and two other Sudanese nationals with lesser charges. None of them has been taken into custody or tried.

Article 13(b)

How were these referrals possible? The answer lies in Article 13(b) of the ICC statute (aka the Rome Statute), under which the ICC may exercise jurisdiction in respect of genocide, war crimes and crimes against humanity if:

“A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;” [5]

So, the ICC is not an independent judicial body, the jurisdiction of which states can choose to reject, as the US and others have done.  On the contrary, its jurisdiction can be extended by the Security Council to apply to states that have chosen to reject its jurisdiction. 

Of course, this cannot happen to veto-wielding members of the Security Council, who have chosen not to become a party to the Statute – since they can wield their veto to block any attempt by the Security Council to extend the ICC’s jurisdiction to their territory.  So, China, Russia and the US, which have chosen not to ratify the Statute, will never have ICC jurisdiction extended to their territories.

And neither will Israel, since the US can be relied upon to use its veto to block it.

A Court with universal jurisdiction is fair.  A Court, the jurisdiction of which states can choose to accept, has a semblance of fairness.  But a Court, like the ICC, the jurisdiction of which can be extended by the Security Council to some states that have chosen not to accept its jurisdiction but not to others, is grossly unfair. 

Protecting own nationals

The ICC has jurisdiction in respect of genocide, war crimes and crimes against humanity, committed in the territories of states that are party to the Statute, or by nationals of states that are party to the Statute.  However, the primary duty for prosecuting these crimes lies with the state in which they were committed – and the ICC only acquires jurisdiction to prosecute them if the state fails to prosecute them.  In principle, the ICC can prosecute any individual responsible for these crimes, regardless of his/her civilian or military status or official position.

This means that, in theory, a national of a state that is not party to the Statute, for example, a US national, may be tried by the ICC for crimes committed in a state that is a party to the Statute.  The US is particularly opposed to this, since it has civilian and military personnel in lots of states around the world, many of which are party to the Statute.  It is US policy to prevent the ICC trying any US nationals.

Because of this, Resolution 1970 includes a paragraph exempting nationals from states not party to the ICC, including US nationals, from the jurisdiction of the ICC for acts committed in Libya. This is paragraph 6, which says 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;” [2]

The hypocrisy surrounding this is staggering: states that are not party to the ICC support the referral of matters occurring in the territory of one of their number to the ICC, but exclude their own nationals from the impact of that referral.

Article 98 agreements

Since the ICC came into operation in 2002, the US has gone to extraordinary lengths to prevent its own nationals from being subject to the jurisdiction of the Court. Under Article 89(1) of the Rome Statute, states that are party to ICC are required to “comply with requests for arrest and surrender” by the Court. In principle, these may be for the arrest and surrender to the Court of US nationals.

To prevent a state acceding to such a request, the US has sought to take advantage of Article 98.2 of the Rome Statute, which states:

“The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.” [5]

Starting in 2002, the US negotiated agreements with more than a hundred states in which they agree not to surrender US nationals to the Court. These agreements are variously known as Article 98 agreements, bilateral immunity agreements (BIAs) and bilateral non-surrender agreements. To the best of my knowledge, Ireland has not made such an agreement with the US.

With some exemptions, states that are parties to the ICC, cannot receive military aid from the US in the absence of such an agreement. This is enshrined in American Service-Members' Protection Act passed by the US Congress in 2002. Section 2007(a) states that

“no United States military assistance may be provided to the government of a country that is a party to the International Criminal Court”. [6]

Section 2007(d) exempts NATO members, other major non-NATO allies (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand) and Taiwan from this provision.

But Section 2007(c) allows the President to waive the prohibition of military assistance if an Article 98 agreement exists. It says:

“The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the appropriate congressional committees that such country has entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal court from proceeding against United States personnel present in such country.” [6]

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Such are the lengths that the US is prepared to go in order to exclude its own nationals from the jurisdiction of the ICC, while voting in the Security Council to extend the jurisdiction of the ICC for others.

David Morrison

March 2011

References:

[1] www.icc-cpi.int/Menus/ASP/states+parties/

[2] www.un.org/Depts/dhl/resguide/scact2011.htm

[3] www.irishtimes.com/newspaper/opinion/2011/0312/1224291980987.html

[4] www.un.org/Depts/dhl/resguide/scact2005.htm

[5] www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

[6] www.amicc.org/docs/ASPA_2002.pdf