Note to the reader
This essay was finalized in January 2012 and thus does not take
into account the latest developments regarding Saif Al Islam and
his status under International Criminal Law.
This paper is rather an analysis of patterns of behavior within
the International Community with regards to the international
legal order.
Shereen Dbouk MA – International Law and the Settlement of Disputes
1
An explanatory note on Libya’s intervention
The UN Charter, signed on June 26th, 1945 on the ashes of World War II, remains a
text, which emphasizes a consensual status quo framework. It is based on the
principles of non-intervention and the commitment to sovereign equality between
members while only allowing coercive measures under exceptional circumstances.
Thus it naturally left out the issue of intervention for human rights protection
purposes, specifically with regard to internal conflicts. The theory of R2P is a
successful attempt at breaking the dichotomy between prohibitive law and moral
responsibility. Libya served as the first test case for a military intervention directly
inspired by the principles of R2P. The United Nations Security Council Resolutions
1970 and 1973 implemented a military intervention in Libya for humanitarian
protection purposes. Nevertheless, this UN attempt to recapture the humanitarian
narrative, raises interrogations over the end goal of its mission in Libya. One might
wonder if this institutionalization of humanitarian intervention provides a perfect
formula addressing humanitarian emergencies while also serving national security
interests. In the end, will Libya 2011 equate to Iraq 2003?
Shereen Dbouk MA – International Law and the Settlement of Disputes
2
The Responsibility to Protect: a holistic concept shaping the international legal
order?
On February 26th 2011, the United Nations Security Council (UNSC) adopted
Resolution 1970 and referred the situation in Libya to the International Criminal
Court (ICC) Prosecutor who submitted on May 16th 2011, a request to Pre-Trial
Chamber I to issue warrants of arrest for Muammar Abu Minyar Gaddafi, Saif Al
Islam Gaddafi and the Head of the Intelligence Abdullah Al Sanousi for crimes
against humanity allegedly committed in Libya since February 15th 2011. The
warrant arrests were issued on June 27th 2011. UNSC Resolution 1970 “urges all
States (...) to cooperate fully with the Court and the Prosecutor (...)”. The situation
raises important questions pertaining to the Court’s jurisdiction.1 As part of R2P the
ICC is an important judicial tool striking a balance between state sovereignty, as
evidenced by the case of Saif Al Islam2, and international legal accountability. As a
permanent international judicial institution it ensures international peace and security
and just like R2P protects the interests of humanity. R2P and the ICC illustrate how
international law and norms are increasingly invoked interdependently. Both entities
seek to protect the rights of individuals and participate in the effort to halt human
suffering. Had Gaddafi lived he would have subjected to the Court’s jurisdiction.
However, in a similar fashion to the Al-Bashir case, the arrest of Gaddafi would have
implicated issues of international compliance to the court’s jurisdiction, especially in
a case of UNSC referral to the Court.
1
The focus on Muammar Gaddafi deals with the relation between immunity and recognition. In effect,
at the time he was still alive, the NTC had not yet obtained de jure recognition in every country. While
fully aware that immunity may not be a defense to international criminal crimes, as evidenced by the
Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
this paper takes into account States’ approach toward immunity, notably in the Al-Bashir case.
2According
to the notions of complementarity and admissibility Saif Al Islam has the right to be tried
in Libya.
Cf. Timothy Williams Waters. "Let Tripoli Try Saif al-Islam." The Council on Foreign Relations,
December 09th, 2011. http://www.foreignaffairs.com/articles/136726/timothy-william-waters/lettripoli-try-saif-al-islam
Shereen Dbouk MA – International Law and the Settlement of Disputes
3
- States’ cooperation with the Court in the case of a UNSC referral
Following upheaval in Libya, the Gaddafi regime was overthrown and has now been
replaced by the National Transitional Council (NTC). While a majority of States has
recognized the NTC, at the time Gaddafi was still alive some were still reluctant to do
so and continued to view Gaddafi as acting head of the Libyan State. 3 Similarly to the
Al-Bashir case, these States could have refused to cooperate with the ICC, invoking
immunity against prosecution for serving heads of State, following principles of
customary International Law. Thus States who had not recognized the NTC as de jure
representative of Libya would have been faced with a conflict of obligation between
customary International Law and Treaty obligations with regard to removing
Gaddafi’s immunity.4
Article 98 of the ICC’s Rome Statute provides: “1. The Court may not proceed with a
request for surrender or assistance which would require the requested State to act
inconsistently with its obligations under international law with respect to the State or
diplomatic immunity of a person or property of a third State, unless the Court can first
obtain the cooperation of that third State for the waiver of the immunity. 2. 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”.
3
As of September 26th, 2011, the African Union (AU) has recognized the National Transitional
Council (NTC) as a de facto representative of the Libyan people however, full recognition has not yet
been granted and Libya’s seat has not been filled by the NTC. The AU will recognize the NTC as de
jure representative of Libya upon fulfillment of certain criteria laid down during the September 14th,
2001 AU High-Level ad hoc committee on Libya.
“Recognition of the NTC as the legitimate representative of the Libyan people leaves intact the
international legal status of the incumbent Qaddafi government as the government of Libya. While a
State cannot have two de jure governments at the same time, it can have a de jure government and a
local de facto government or a representative of the State’s people” Thomas Talmon,"Recognition of
the Libyan National Transitional Council." American Society of International Law. 15. no. 16 (2011)
4
Shereen Dbouk MA – International Law and the Settlement of Disputes
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Since Libya is not a member of the ICC, States party to the Rome Statute, can invoke
article 98 irrespective of article 27, which removes immunities accruing to ICC
parties.5
Thus the key question is whether Libya or any other country not initially party to the
ICC, is to be considered as such in the case of a UNSC referral. UNSC Resolution
1970 recalls: “(...) while recognizing that States not party to the Rome Statute have no
obligation under the Statute, urges all States and concerned regional and other
international organizations to cooperate fully with the Court and the Prosecutor (...)”.
Through UNSC Resolution 1970, the UNSC imposes an obligation on UN member
States to cooperate with the Court but it does not explicitly make the Statute binding
on them. However, if the Treaty as such is not considered binding on them, the
provisions of UNSC Resolution 1970, which refer the situation in Libya to the ICC,
apply to all UN-members States.6 Article 1 of the Rome Statute provides that “ (...)
the jurisdiction and functioning of the Court shall be governed by the provisions of
this Statute”. Additionally, article 13(b) of the Rome Statute clearly states that “the
Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute 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”.
In other words, States are bound to cooperate with the ICC and thus accept that the
Court can act in accordance with its Statute. To this effect all States are bound to
accept the jurisdiction of the Court with regards to its Statute and ought to be
temporarily considered as States party to it, in the case of a UNSC referral.
5
Article 27 of the Rome Statute: «this Statute shall apply equally to all persons without any distinction
based on official capacity (...) Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person ». The provisions of article 27 apply irrespective of
bilateral agreements or treaties under Customary International Law, which refer to functional
immunities.
6
Chapter VII of the UN Charter allows the Security Council to take measures to "maintain or restore
international peace and security" if it has determined "the existence of any threat to the peace, breach
of peace or act of aggression” (Article 39 UN Charter). Resolutions adopted under Chapter VII are
legally binding.
Shereen Dbouk MA – International Law and the Settlement of Disputes
5
According to Article 12 of the Rome Statute, the Court may exercise its jurisdiction
on “The State on the territory of which the conduct in question occurred” or “The
State of which the person accused of the crime is a national”.
The territorial criterion applied to Libya. It also implies that States initially non-party
to the Rome Statute are considered as parties and therefore cannot invoke its article
98(1). Indeed all States recognize the applicability of the Statute and the Court’s
jurisdiction such as there is no State (no UN-member State) considered as a third state
according to the Rome Statute.
It stems from this logic that all States ought to be temporarily considered as parties to
the Rome Statute. Furthermore, Article 25 of the UN Charter estops them from
taking a contrary position: “members of the UN agree to accept and carry out the
decisions of the Security Council in accordance with the present charter.” Thus
States’ cooperation with the Court results from the UN Charter and they are subject to
the Rome Statute’s provisions. If States are considered to be party to the Rome
Statute, then Article 27 supersedes article 98 and States would have been under the
obligation to waive Gaddafi’s immunity and cooperate in every way needed with the
Court.7 Lastly, a UNSC Resolution compelling States -party or initially non party to
the Rome Statute- to remove immunity of an acting head of State in order to abide by
the ICC’ ruling, is still conflicting with obligations under customary international law
and treaty rules.8Article 103 of the UN Charter ought to be invoked in order to resolve
this final issue since “in the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present Charter shall
prevail.”
7
For instance, the judicial apparatus of a State would have to place Gaddafi into custody, should the
latter be present on their soil. The terms of cooperation are provided in article 89 of the Rome Statute.
8
Article 38 of the ICJ Statute does not introduce a hierarchy between sources of international law. As
such, customary international law and treaty law are equally applicable with regard to immunity
granted to a head of State.
Shereen Dbouk MA – International Law and the Settlement of Disputes
6
Conclusion
Thus the R2P doctrine does not simply address prevention and military intervention it
also tackles the issue of international judicial accountability. It goes beyond the UN’s
volitions to encompass in its Charter a mean to use force for humanitarian protection
purposes. It touches to accountability, international justice and the shaping of an
international order from which all States becomes party as it has been exemplified by
the logic behind the UNSC referral to the ICC.
In this sense R2P represents a holistic concept participating in the normative system
of international law and the international order, addressing conflict situations and
international judicial accountability that follows thereof.
Shereen Dbouk MA – International Law and the Settlement of Disputes
7
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