Can The ICC Prosecute NATO For War Crimes Committed In Libya? Yes.
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Russia called on the ICC to investigate possible war crimes committed by NATO forces during its bombing campaign in Libya:
The International Criminal Court should look into all cases of NATO airstrikes in Libya that resulted in civilian deaths, the Russian Foreign Ministry said.
“We welcome the decision of ICC Prosecutor Luis Moreno-Ocampo to consider alleged violations of international humanitarian law,” Foreign Ministry human rights spokesman Konstantin Dolgov said in a statement posted on the ministry’s Web site. “We presume that the ICC will consider all cases of NATO bombing that caused civilian casualties.”
The issue of civilian casualties during the NATO Libyan campaign last year had been raised at the U.N. Security Council and the U.N. Council on Human Rights, RIA Novosti reported Friday.
“An impartial international investigation into the effects of NATO airstrikes during Operation United Defender in Libya is necessary to prevent such tragedies in the future,” the statement said.
David Bosco rightly points out at The Multilateralist that the practical likelihood of the ICC taking Russia up on its request is “vanishingly small” — international tribunals have consistently refused to investigate crimes committed by Western powers (the ICTY regarding Kosovo; the ICC itself regarding Iraq). David also claims, however, that the ICC would be legally precluded from investigating crimes committed by nationals of non-member NATO states (such as the U.S.) by paragraph 6 of S.C. Res. 1970, which purports to exempt such individuals from the ICC’s jurisdiction:
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.
I respectfully disagree with David here. In my view, the Security Council’s attempt in Res. 1970 to limit the ICC’s jurisdiction ratione personae is inconsistent with Art. 13(b) of the Rome Statute, which provides (emphasis mine) that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) 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.” Art. 13(b) makes clear that the ICC investigates situations, not individuals or individual cases — particularly not individuals or individual cases associated with only one side to a conflict. Nothing in the Rome Statute gives the Security Council the right to revise the Court’s jurisdiction in media res; indeed, Art. 1 makes clear that “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”
This is, of course, not a new issue. The Security Council included similar language in S.C. Res. 1593, which referred the situation in Darfur to the ICC. That language led to a superb article by Rob Cryer in the Leiden Journal of International Law (sub. req.) explaining why the Security Council did not have the authority to exempt the nationals of particular states from the ICC’s jurisdiction. Here is what Rob said at the time about the “situation” issue:
The text of Article 13(b), in particular when read alongside Article 16, makes it clear that a situation may not be limited ratione personae. Article 13(b) reads, in relevant part, ‘a situation in which one or more of such crimes appears to have been committed’. The original ILC draft Statute for an International Criminal Court provided that the Council could refer ‘matters’ to the Court, to avoid the impression that the Security Council could refer individual cases. The final version of Article 13(b) refers to ‘situations’ rather than ‘matters’, as the former term was more general than the latter. The terminology of ‘situations’ is clearly distinct from ‘prosecution’, which was used in Article 16, where the Council was given the authority to intervene in more specific cases. If the Council can only refer situations, rather than ‘investigations’, ‘prosecutions’, and, a fortiori, ‘cases’, then it cannot limit the referral, even by excluding a small group.
The fact that a situation may not be limited ratione personae also appears to have been the position adopted by the Prosecutor. When Uganda first sought to refer itself to the ICC under Article 13(a) of the Rome Statute, the referral was for the situation ‘concerning the Lord’s Resistance Army’ in northern Uganda. The Prosecutor, nonetheless, has opened an investigation into northern Uganda more generally. Article 13(a), like 13(b), refers to ‘situations’, and there is no reason to believe that ‘situations’ was not intended to mean the same thing in both Article 13(a) and Article 13(b).
Rob also critiques the idea that Res. 1593′s preambular reference to Article 16 of the Rome Statute, which permits the Security Council to defer investigations and prosecutions for one year — a reference that exists in the preamble to Res. 1970, as well — means that the exclusionary language in question should be interpreted to simultaneously refer a situation and defer investigations into particular nationals:
The first difficulty is the clearest; the language of the Resolution simply does not support this interpretation. As mentioned above, operative paragraph 6 is not framed in terms of Article 16. Where the Security Council has previously purported to rely on Article 16, such as in Resolutions 1422 and 1487, it has expressly said so in the relevant operative paragraph. Resolution 1593 does not. The only possible support for such an interpretation is the preambular reference to Article 16, yet this is undermined by the wording of operative paragraph 6. Not only does that paragraph not refer to Article 16, but it frames itself in terms of a limitation of the jurisdiction of the Court.
[snip]
Even if this were not the case, operative paragraph 6 is not consistent with Article 16 of the Rome Statute. Article 16 requires the ICC to defer to a request for a temporally limited period. It is quite clear that there is no such temporal limitation envisaged in Resolution 1593, which contains no ‘sunset clause’ for operative paragraph 6.
These arguments are convincing. Paragraph 6 of Res. 1970 might have made non-member NATO states feel better about the ICC referral, but it does not prohibit the ICC from prosecuting their nationals.
If there were global justice, Nato would be in the dock over Libya
Liberia’s Charles Taylor has been convicted of war crimes, so why not the western leaders who escalated Libya’s killing?
by Seumas Milne
Libya was supposed to be different. The lessons of Iraq and Afghanistan had been learned, David Cameron and Nicolas Sarkozy insisted last year. This would be a real humanitarian intervention. Unlike Iraq, there would be no boots on the ground. Unlike in Afghanistan, Nato air power would be used to support a fight for freedom and prevent a massacre. Unlike the Kosovo campaign, there would be no indiscriminate cluster bombs: only precision weapons would be used. This would be a war to save civilian lives.
Seven months on from Muammar Gaddafi’s murder in the ruins of Sirte, the fruits of liberal intervention in Libya are now cruelly clear, and documented by the UN and human rights groups: 8,000 prisoners held without trial, rampant torture and routine deaths in detention, the ethnic cleansing of Tawerga, a town of 30,000 mainly black Libyans (already in the frame as a crime against humanity) and continuing violent persecution of sub-Saharan Africans across the country.
A year after the western powers tried to make up for lost ground in the Arab uprisings by tipping the balance of the Benghazi-led revolt, Libya is in the lawless grip of rival warlords and armed conflict between militias, as the western-installed National Transitional Council (NTC) passes Gaddafi-style laws clamping down on freedom of speech, gives legal immunity to former rebels and disqualifies election candidates critical of the new order. These are the political forces Nato played the decisive role in bringing to power.
Now the evidence is starting to build up of what Nato’s laser-guided bombing campaign actually meant on the ground. The New York-based Human Rights Watch this week released a report into the deaths of at least 72 Libyan civilians, a third of them children, killed in eight separate bombing raids (seven on non-military targets) – and denounced Nato for still refusing to investigate or even acknowledge civilian deaths that were always denied at the time.
Given the tens of thousands of civilians killed by US, British and other Nato forces both from the air and on the ground in Iraq, Afghanistan, Pakistan and Yemen over the last decade, perhaps Nato commanders prefer not to detain themselves with such comparative trifles. And Human Rights Watch believes that, whatever the real number of civilians directly killed by Nato bombing, it was relatively low given the 10,000-odd sorties flown.
But while Nato’s UN mandate was to protect civilians, the alliance in practice turned that mission on its head. Throwing its weight behind one side in a civil war to oust Gaddafi’s regime, it became the air force for the rebel militias on the ground. So while the death toll was perhaps between 1,000 and 2,000 when Nato intervened in March, by October it was estimated by the NTC to be 30,000 – including thousands of civilians.
We can’t of course know what would have happened without Nato’s bombing campaign, even if there is no evidence that Gaddafi had either the intention or capability to carry out a massacre in Benghazi. But we do know that Nato provided decisive air cover for the rebels as they matched Gaddafi’s forces, carried out massacres of their own and indiscriminately shelled civilian areas with devastating results – such as reduced much of Sirte to rubble last October.
There were also Nato and Qatari boots on the ground, including British special forces, co-ordinating rebel operations. So Nato certainly shared responsibility for the deaths of many more civilian than its missiles directly incinerated.
That is the kind of indirect culpability that led to the conviction last month of Charles Taylor, the former president of Liberia, in the UN-backed special court for Sierra Leone in The Hague. Taylor, now awaiting sentence and expected to be jailed in Britain, was found guilty of “aiding and abetting” war crimes and crimes against humanity during Sierra Leone’s civil war in the 1990s. But he was cleared of directly ordering atrocities carried out by Sierra Leonean rebels.
Which pretty well describes the role played by Nato in Libya last year. International lawyers say legal culpability would depend on the degree of assistance and knowledge of war crimes for which Nato provided cover, even if the political and moral responsibility could not be clearer.
But there is of course simply no question of Nato leaders being held to legal account for the Libyan carnage, any more than they have been for far more direct crimes carried out in Iraq and Afghanistan. The only Briton convicted of a war crime over the bloodbath of Iraq has been Corporal Donald Payne, for abuse of prisoners in Basra in 2003. While George Bush has boasted of authorising the international crime of torture and faced not so much as a caution.
Which only underlines that what is called international law simply doesn’t apply to the big powers or their political leaders. In the 10 years of its existence, the International criminal court has indicted 28 people from seven countries for war crimes and crimes against humanity. Every single one of them is African – even though ICC signatories include war-wracked states such as Colombia and Afghanistan.
That’s rather as if the criminal law in Britain only applied to people earning the minimum wage and living in Cornwall. But so long as international law is only used against small or weak states in the developing world, it won’t be a system of international justice, but an instrument of power politics and imperial enforcement.
Just as the urgent lesson of Libya – for the rest of the Arab world and beyond – is that however it is dressed up, foreign military intervention isn’t a short cut to freedom. And far from saving lives, again and again it has escalated slaughter.