On Saturday, February 26 the UN Security Council unanimously adopted Resolution 1970 to address the ongoing crisis in Libya and to refer the situation there to the ICC Prosecutor. Since Libya is not a State Party to the Rome Statute, the referral provides the basis for ICC jurisdiction over alleged crimes committed in Libya since February 15. It invites, but cannot require, the ICC Prosecutor to open an investigation into crimes within the Court’s jurisdiction. This resolution may mark the beginning of a new era in the work of the Court and in its relationship with the US. It is quite possible that there will be further referrals, supported by the US, of the cases of fallen leaders in other countries in the Middle East.
The text of the resolution directly addresses the ICC referral in six of its paragraphs. (Many of the other 38 paragraphs and the two annexes deal with sanctions, travel bans and the freezing of assets.) The first is preambular paragraph 12 which recalls Article 16 of the Rome Statute, a provision which describes the ability of Security Council to defer ICC investigations and prosecutions for renewable periods of 12 months. It mirrors preambular paragraph 2 of Resolution 1593 (2005) which referred the Darfur, Sudan situation to the Court. It is unclear to us why this preambular paragraph was included. There is no corresponding operative paragraph in either resolution. The present resolution, like 1593, does not mention Article 13(b) which states how the Court’s jurisdiction may be triggered by a Security Council referral. However, the resolution itself appears to meet the requirements of Article 13(b) since it was adopted under Chapter VII of the UN Charter.
Operative paragraphs 4 and 5 state the referral, limited to crimes that occurred since February 15, 2011, and require the cooperation of Libyan authorities. Similar to Resolution 1593, the resolution reiterates that non-States Parties to the Rome Statute have no obligation to cooperate but nonetheless urges other countries and concerned regional and international organizations to cooperate. In contrast to the Darfur resolution, Resolution 1970 does not take note of the existence of immunity agreements which the Bush administration claimed were authorized by Article 98(2) of the Rome Statute. Over 100 of these agreements were concluded by the Bush administration as an effort to shield US nationals from the reach of the ICC, though the practice petered out in the second term of that administration.
Operative paragraph 6 purports to grant exclusive jurisdiction over non-Libyan nationals of countries that are not ICC States Parties to the courts of their nationalities, subject to waiver. This closely tracks operative paragraph 6 of the Darfur resolution. It should be noted that under the UN Charter the Security Council can give orders to UN Member States but cannot bind other international organizations. As such, the ICC could ignore this provision, though it would likely try to avoid this situation. Operative paragraph 7 invites the ICC Prosecutor to report regularly to the Security Council, as it did with in Darfur resolution.
The final operative paragraph on the ICC referral, OP8, recognizes that the UN will not bear any costs associated with the referral. This provision, like the Article 16 reference and the non-cooperation for non-States Parties clause, are in line with provisions that the US has insisted on in the past. We do not know at this time whether the US requested it, though it is likely that the US delegation was again concerned about the possibility of jurisdiction over US nationals and complaints from Congress about US funds supporting an ICC investigation.
Resolution 1970 is another example of the US supporting the ICC when it is in the American national interest, a trend which will help the US to the gain the comfort with the Court that is necessary for a close and productive relationship that could eventually lead to the US joining the Court. Accountability for the alleged crimes in Libya is of great interest in the US, and even gained the attention of Senator Robert Menendez (D-NJ) who last week proposed a resolution urging action by the ICC. This latest resolution reaffirms US support for the ICC as an international organization and as an important institution in dealing with major atrocities. The US co-sponsored and voted in favor of Resolution 1970, two positive actions in comparison with its limited decision to abstain from voting on Resolution 1593 on Darfur.
UN Photo/Evan Schneider