"The Libyan conflict and international law"

Natalia Narochnitskaya and Hans Köchler

 Hans Köchler  

"The Libyan conflict and international law" 

Speech at IDC, 8 December 2011

I will speak about the instrumentalisation of international law and with special emphasis on the instrumentalisation of the International Criminal Court in the Libyan situation as it has evolved this year. 

I completely share the analysis of Roland Dumas concerning the international system and the change of purpose of the Atlantic Alliance.

As far as this instrumentalisation is concerned, I see two different aspects.  First, the Security Council of the United Nations has been used as an instrument by the countries of the NATO coalition for the purpose of legitimising an effectively colonial intervention.  The other aspect I will concentrate on is that the International Criminal Court has in turn been instrumentalised, i.e. used as an instrument, by the Security Council in order to give this military effort the aura of a legal and humanitarian undertaking.  I must say that I have really begun to ask myself over the course of these events whether the North Atlantic Treaty Organisation has the aspiration to replace the International Committee of the Red Cross, because supposedly it was aiming exclusively at the protection of the civilian population.

As far as the history of the UN Resolutions is concerned, we witness what I would call an abuse of the Chapter 7 provisions of the UN Charter.  These are the provisions dealing with collective security. We have witnessed this since the first Gulf war in 1991.  I would like to mention in this regard that the Security Council, in Resolutions which are supposed to be legally binding because they are Chapter 7 Resolutions, has used totally undefined and imprecise terms. I mean the use of the phrase "all necessary means" which was in the Resolution which preceded the war against Iraq over Kuwait in 1991 and which appeared again this year in Resolution 1973 as "all necessary measures".  These formulations have invited arbitrary and self-righteous actions by countries which were thereby enabled to cover up their true motives and intentions.  What the Libyan intervention was, in actual fact, was a war of aggression which has been legitimised as an act of collective security.  What I consider highly problematic and even dangerous is that, apparently, a military alliance composed of UN member states, has been allowed to emerge as a self-appointed enforcer of UN Resolutions.  For me, it is really a total deviation from the original purpose of NATO and it is not credible in any way to speak of non-Article 5 crisis response operations.  Article 5 is the article of the NATO charter which provides for military action in self-defence but NATO as an organisation is today not recognisable; one can no longer say that it is devoted to the mutual defence of its members.  It has instead become a tool of domination.

But there is a new element in this affair which really worries me and that is the special and rather strange role which has been given in this context to the International Criminal Court.  I feel that this role is in some ways rather similar to the role which the International Criminal Tribunal for the former Yugoslavia played in connection with the NATO war against Yugoslavia in 1999.  These two situations are structurally quite similar.  There was a plan or an intention to intervene militarily in a certain country and an international criminal court issued arrest warrants for the political leaders of the respective countries.  The tribunals did this just at the right time when the politicians of the intervening countries needed to explain to their publics why they were leading these operations.

1.         There is a basic legal problem with one of the articles of the so-called Rome Statute, the treaty which brought the International Criminal Court into being. Article 13b gives the Security Council the dubious right to refer situations to the International Court in cases where the Court has no jurisdiction because those countries are not signatory States.  To me it is rather obvious that this article of the Rome Statute is a violation of the basic principles of international law and even of ius cogens (the imperative norms of international law) in particular of the Vienna Convention on the Law of Treaties according to which no country is bound by a treaty to which it has not acceded or which it has not ratified.  There is a further irony.  In its legal construction, the ICC is not part of the UN system in any way.  It is an independent organisation.  But its Statute allows the Security Council to interfere directly in how the Court exercises its jurisdiction.

2.         The second point concerns the artificial determination which the Security Council has to make in connection with international criminal justice.  It is not only a problem concerning ICC referrals, it is also a problem concerning the creation of ad hoc courts such as the ICTY and the ICTR.  What I mean is that the Security Council, in order to refer a situation such as in the Libyan case, must present it in such a way that a legal action - a prosecutorial action - is a coercive measure intended to restore international peace and security.

3.         The third aspect relates to the specific formulation of the Resolution 1970 passed on 26 February 2011.  I am not alone in considering this Resolution to have been ultra vires, that is, beyond the competence of the Security Council.  It was also in breach of the Rome Statute of the ICC.  I refer to paragraph 6 of this Resolution where the Council refers the situation in Libya to the ICC but with the proviso that citizens, personnel and officials of countries which have not ratified the Rome Statute are not subject to the jurisdiction of the Court.  The irony is that there is an exception to the exception because this exemption does not include Libya itself, which has not even signed the Rome Statute but which the referral places under its jurisdiction!   It seems to me clear that, whatever the legal problems of Article 13b are, the Security Council has no right whatsoever to restrict the jurisdiction of the ICC once it has done its job and once it has referred a case to the ICC.

4.         The Prosecutor of the ICC seems to have acted more on a political than a legal basis.  He seems to make his decisions selectively, applying double standards.  On the basis of the referral, he conveniently issued arrest warrants for three specific individuals in the Libyan leadership, one of whom has in the meantime been brutally killed with the help of NATO.  It is worthy of note that no officials of NATO countries that are State Parties to the ICC Statute and which have intervened in Libya have apparently been considered for an arrest warrant by Mr Ocampo, and this in spite of strong evidence of war crimes that may have been committed.  Ever since the beginning of the intervention, there have been repeated attacks on civilian residences and there are well documented cases of specific targeting of individuals and deliberate destruction of civilian infrastructure.  All these acts are war crimes according to Article 5 of the ICC Statute itself.  Furthermore, as far as the selectivity of the decisions of the Prosecutor is concerned, it seems that he has so far refused to investigate the circumstances of the revenge killing of the head of state of Libya.  This is especially noteworthy because he had issued an arrest warrant for that person and apparently he is doing nothing now to investigate this murder which was not only a war crime but also an obstruction of justice because now of course the ICC cannot exercise jurisdiction over him.

5.         My last point concerns what I see as the latest act of political expediency by Prosecutor Ocampo.  Allow me to use the ICC terminology a little ironically, Mr Ocampo apparently chose to defer the further prosecution of one person, who has now been apprehended - one of the three - to the non-existent Libyan judiciary and he has said publicly that this should be the procedure in view of the complementarity principle in the Rome Statute.  This means that he as the Chief Prosecutor does not even take seriously the role and the integrity of his own Court because complementarity means that the Court will defer a case to national authorities only if the national authorities are competent and willing to prosecute according to international standards.  That means implicitly that Mr Ocampo has issued a clean bill of health to a country where, for the time being, mob rule has replaced the judicial process.  In my analysis, this means that the Chief Prosecutor of this Court has completely discredited the entire project of international justice.

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