A Mandate to Arrest Gaddafi – unfinished arguments…

 

“Mr. President, the international community is in the initial stages of establishing the ICC. Make no mistake about it: if the international community does not ensure that the orders of the Court are enforced, it is bound to go the way of the League of the Nations.”

Judge Gabrielle Kirk McDonald, Address to the United Nations General Assembly, Nov. 8, 1999

Arresting Gaddafi: Arguments In Support of the Enforcement of the ICC’s Arrest Warrant

A NATO supported arrest of Muammar Gaddafi, the former dictator of Libya, could overcome significant popular cynicism about the NATO mission, the ICC and regular opposition to the Court’s indictments based on peace versus justice arguments. Most importantly, capturing and prosecuting Gaddafi would be a coup for the Libyan people and would add credibility to its nascent government. Yet for any of these results to be achieved Gaddafi’s arrest and prosecution must by undertake according to international due process.

In addition to the sound Liberal and realist arguments for enforcing the warrants issued in the Libyan situation, a mandate for this arrest can also be made out in international law and there are compelling precedents to support Gaddafi’s arrest and prosecution’s legality. As such, these arguments will hopefully be relevant to the commanders of NATO’s mission in Libya, Operation Unified Protector. Below I set out these legal arguments and precedents.

The ICC’s Achilles Heel

While the UN Security Council (UNSC) referred the situation in Libya to the International Criminal Court, it continued to ignore the ICC’s “longstanding Achilles’ heel”[1]: its absence of a means to enforce its arrest warrants. The Council, arguably the only international organ with the power to enable the Court, left it powerless, particularly in its mission in Libya, a State not party to the ICC.

Nevertheless, a mandate can be found in the resolutions authorizing NATO’s mission in Libyan and the ICC situation there as well as through principles of public international law more broadly. In addition, there are many precedents following the principle of mala captus bene detentus to support Gaddafi’s detention whether originally by NATO forces or by rebels who would later hand him over to NATO. Finally, it can reasonably be argued that the law of head of state immunity does not apply in this case.

NATO

While NATO’s role in Gaddafi’s arrest is optional, all parties would benefit from its participation. Like Sudan in 2006, Libya is not a party to the Rome Statute so its government is not obligated to cooperate with the ICC. If Libyan forces were to capture Qadaffi and hand him over to NATO, however, there are a number of ICTY precedents supporting NATO’s transfer of Gaddafi to the ICC. NATO, working with Libya’s interim government could solve the ICC’s enforcement deficit.

As a historical and legal precursor to the ICC, the International Criminal Tribunal for the former Yugoslavia is the most useful source of lessons for the ICC’s operation in a hostile environment. At its outset, political and military obstacles prevented NATO cooperation with the ICTY’s work. With no enforcement mechanisms, the ICTY had the potential to spoil the entire international criminal project’s prospects as a deterrent against crimes against humanity. By April 2001, however, the relationship between the NATO and the ICTY had changed dramatically: NATO had arrested 19 indictees, 13 had surrendered voluntarily and 6 had been arrested by domestic law.[2]

In short, NATO is the only international organization that has been directly involved on a significant scale in the arrest of persons indicted by an international tribunal.[3] Further, while far from satisfactory, “ICTY-NATO[4] cooperation can be regarded as representing the foundation of a rudimentary system of international criminal law enforcement in which the international community relies on international peace missions” as a result of “the unwillingness of states to comply with their obligations in the execution of arrest warrants.”[5] Just as the ICTY assisted NATO forces in loosening a deadlocked crisis in the former Yugoslavia, so too, the ICC could cooperate with NATO, adding concrete, visible outcomes such as arrests to its mission’s protective mandate without falling back on regime change or being forced to withdraw by Western political opinion or fatigue.

A Mandate

While the ICC explicitly has jurisdiction through the Security Council’s referral under section 13(b) of the Rome Statute, an unlawful arrest could provide an indictee with a defense against prosecution. To prevent such a defense, the arresting authority must be acting within its mandate. This would also establish a strong precedent and ensure respect for due process.[6]

The clearest source for a mandate for Qadaffi’s arrest would be a UNSC resolution requiring NATO enforcement of ICC indictments. As a result of Security Council politics, however, such a resolution is not likely. This despite the Council’s independent unanimous resolutions referring crimes committed in Libya to the ICC and authorizing the NATO intervention.[7]

Barring the passage of a resolution specifically setting out an arrest mandate, an implied mandate could be derived from three sources: 1) the UNSC’s referral to the ICC and related international criminal statutes and precedents, 2) the UNSC resolution authorizing member states and regional organizations to, inter alia, take “all necessary measures” to protect civilians in Libya or 3) public international law more generally including customary law and the Geneva Conventions.

The UNSC Referral

The triggering by the Security Council of an ICC investigation under Article 13(b) of the ICC’s founding Statute (the “Rome Statute” or “Statute”) was and is legally analogous to the Council’s creation of the ad hoc Tribunals for Rwanda and the former Yugoslavia. Both scenarios involve a Chapter VII UNSC resolution triggering a judicial process to try individuals for war crimes and crimes against humanity. Both use a judicial organization as part of the UN’s enforcement mandate, employing a tribunal to assist its efforts to bring about peace and security. More specifically, the Council refers a “situation” to the Court which, under Chapter VII of the Charter, entails either a threat to the peace, a breach of the peace or an act of aggression.

It now appears “beyond dispute” that the Security Council’s use of Chapter VII to establish the ad hoc Tribunals is legitimate.[8]This lends substantial credence to the legal basis for Article 13 (b) investigations and arrests. The referral of a Chapter VII “situation” to the ICC thus implies that the Security Council intended the Court to function as an ad hoc enforcement arm of the UN parallel to its temporary Rwandan and former Yugoslavian predecessors. Thus, broadly speaking, the Court’s “mission” is to remedy the breach of international peace and security.

Yet there is a disparity between this mission and the powers of the organ assigned to carry it out. The ICC cannot be a UN enforcement mechanism because it is like “a giant without arms and legs” that “needs artificial limbs to walk and work.”[9] This reveals a schizophrenia that often afflicts the Security Council: hesitant to offend and eager to please, the Council drafts mandates without allowing for the means to carry them out.

The ICC’s mission in Libya is handicapped by a particularly weak resolution. Whereas Resolution 827 creating the ICTY provided that:

all States shall cooperate fully with the [ICTY] and its organs [and] take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber

Resolution 1970 is only binding on Libya; it does not oblige the participation of other States to implement its resolutions. Further, Article 29 of the ICTY’s statute provides that,

1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:

(d) the arrest or detention of persons;

(e) the surrender or the transfer of the accused to the International Tribunal.

Yet similar provisions in the Rome Statute are all discretionary. The Council has ordered the giant to undertake an odyssey but has neglected its “achilles heel.”[10]

This paradox may be the result of the Security Council’s impotence: with no permanent enforcement mechanism, it is forced to rely on the contributions of member-States, which are in turn, dependent on domestic political support. The Council’s dependence on States to enforce its mandates raises questions about the verticality of its relations with States because the fickle nature of international opinion often produces UNSC mandates without means (for more on verticality see section NTD below).[11] In Libya, however, short of having NATO troops on the ground, all of the actors are in place. If the right circumstance were to coincide, as in the scenario outlined above, only the mandate need change, or be interpreted appropriately.

Libya’s obligation to cooperate is the only unequivocal order in resolution 1970 related to enforcement of the ICC referral. This is in line with the Statute, which “envisages arrests being effected exclusively by national authorities.”[12] As indicated above, with regard to Libya, resolution 1970 can be read as overriding the Council’s recognition that only States party to the Rome Statute have an obligation to cooperate.[13] The Gaddafi regime’s actions, however, offer little hope for securing assistance and Libya’s rebels remain far too weak to capture Gaddafi or his accomplices.

The Gaddafi regime’s ongoing participation in the very crimes that the ICC was investigating has demonstrated its defiance of international norms since well before the passage of Resolution 1970. It was therefore evident to the Council and Court before the referral that they would not receive substantive cooperation from the Gaddafi regime. The simile about the giant captures exactly the ICC’s current plight in Libya: “the artificial limbs are the State authorities. If the co-operation of States is not forthcoming, these tribunals are paralysed.”

This contradiction, between the reality and the resolution, requires that the Court press beyond the Council’s explicit obligations to search for the UNSC’s intention amongst its explicit “urgings” and implicit requirements. For instance, in the case of the Sudanese referral the Council’s reference to unnamed “other parties to the conflict in Darfur” could have suggested an obligation on the part of the rebel factions fighting Government of Sudan forces to cooperate with the ICC and could even have justified their transfer of an indictee in their custody to the Court. This begs the question how rebel forces would effect such a transfer, and to whom, which brings us to the need for international forces on the ground.

The legal regime regulating such hypothetical forces remains unclear. Since Rome Statute States parties have a general obligation to “cooperate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the Court,”[14] it is not a stretch to see an obligation on the forces of all States parties contributing to Operation Unified Protector to assist in enforcing the ICC’s indictments. Alternatively, under article 87(7) of the Statute, the Court could request that troop-contributing State parties cooperate with the arrest of indictees. However, here again, the Court would be reliant on the Security Council to enforce cooperation.[15]

The Rome Statute

In establishing the ICTY and the ICTR to deal with situations constituting threats to international peace and security, the UNSC intended that individuals actually be arrested and believed that these arrests would benefit both peace and security.[16] The same is true of its referrals to the ICC.[17] Just as it established the ad hoc Tribunals using an implied mandate under Chapter VII, so too a mandate can be read into the ICC’s trigger mechanism.

Before 1993, the Council’s “peace and security” enforcement powers had never been interpreted to include the creation of a criminal court, and their extension into this realm had little basis in the text of the Charter. The UNSC’s use of its implied powers relies on “the crucial link between peace and justice.”[18] This link implies not only the creation of the court but also its effective operation.

It follows from the argument that the ICC has inherent powers of arrest based on the Rome Statute, that in Libya, necessity dictates that NATO cooperate with the Court in the detention of individuals. This inherent power to secure cooperation is supported by two International Court of Justice decisions, The Reparation Case and The WHO Agreement Case. Logic, the Rome Statute, UNSC Resolution 1970 and the ICJ support the ICC’s inherent power to compel international organizations, and particularly UN organs, to enforce its mandates.

This argument is significantly weakened by the ICTY Appeals Chamber’s decision in Blaskic stating that the Tribunal “does not possess any power to take enforcement measures against States.” The Chamber continues: “Had the drafters of the Statute intended to vest the International Tribunal with such a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in its functions.”[19]  The ICTY’s precedents are not binding on the ICC, however, and its functions are broader.

In practice, States frequently read implied powers into the mandates of UN organs.[20] Such practice could imply a customary norm (see below) and the same can be said with regard to interstate abductions of alleged criminals.

NATO’s Mandate

NATO’s Security Council mandate nevertheless offers significant support for an obligation to cooperate with the ICC.  It includes the determination

Recalling its decision to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court, and stressing that those responsible for or complicit in attacks targeting the civilian population, including aerial and naval attacks, must be held to account[21]

This excerpt can be seen as a “hook” on which to hang the requirement that Member States enforce ICC arrest warrants when involved in the situation in Libya.

A basic problem, however, is that arrests are often viewed as counter-productive to peacekeeping or peace-enforcement missions, as they were early in the conflict in Yugoslavia. UN peacekeeping missions require neutrality, it is argued, or at least the perception of it, and this is made impossible when peacekeepers are actively pursuing war criminals.[22] Yet if independent actors abduct the indictee, the peacekeepers’ relative passivity could support their neutrality.

Customary International Law and the Geneva Conventions

Recognizing its lack of law-making powers, the Security Council only conferred on the ad hoc Tribunals the power to adjudicate “universally recognized criminal laws,” that is, violations of the Genocide Convention, crimes against humanity, war crimes that had become customary norms and grave breaches of the Geneva Conventions.[23] These laws are widely accepted as constituting jus cogens[24] customary international law, making them binding on all States and debatably, on international organizations.[25] In other words, because international crimes affect the interest of every member of the international community, the obligation to prosecute or extradite such criminals can be considered erga omnes.[26] Among other sources, the Geneva Conventions, the Genocide Convention, the Rome Statute and much of the jurisprudence from recent international criminal tribunals support this obligation.[27] As it was created to enforce this obligation, the ICC has a claim to a more vertical legal assistance model whereby it could compel States parties and other international actors to enforce its indictments.

Resolutions from both the Security Council and the General Assembly have urged States to cooperate in the prosecution of violations of international criminal law.  For instance, the General Assembly’s adoption of a resolution “with a view to halting and preventing war crimes and crimes against humanity,” thatprovides that States shall “take the domestic and international measures necessary for that purpose” by a vote of 94 in favour, 0 against and 29 abstentions, and the reliance of domestic courts on that resolution,[28] strengthen the customary obligation.[29]

To be Continued: Obstacles to NATO’s Arrest of Gaddafi Other than the Mandate:

The ICC’s human rights guarantees are almost as important is its mandate. The integrity of the Court and the Statute should take precedence over any given situation if they are to withstand the fickle nature of international politics. A three-part test could be applied to the arrest, transfer to the court, and prosecution of an indictee to ensure their legitimacy. First, as discussed above, does the arresting authority have a mandate to undertake this mission and therefore is the arrest within the jurisdiction of the ICC? Second, do the circumstances of the transfer bring the administration of justice into disrepute? Finally, in assessing the prosecution of Gaddafi the first question that will likely arise both in terms of the ICC’s jurisdiction and the defendant’s rights, is whether a head of state can be prosecuted by the ICC.

These latter two obstacles will be addressed in a future post...


[1] [1] Han-Ru Zhou, “The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC” Journal of International Criminal Justice 4 (2006), 202-218 Oxford University Press [Zhou] at 203.

[2] C.M. Supernor, “International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice” AFL Rev., 2001 [Supernor] at 229.

[3] Zhou at 204.

[4] NATO’s Stabilisation Force in Bosnia and Herzegovina.

[5] Dijk at 71.

[6] See section 4.A.iv.

[7] UNSC Resolution 1973 (2011), 17 March 2011.

[8] William A. Schabas, An Introduction to the International Criminal Court. 3rd ed. Cambridge : Cambridge University Press [Schabas ICC] at 152 citing Kanyabashi and Tadic, ICTY, Ap. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, IT-94-1-AR72 [Tadic].

[9] A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 EJIL 2 [Cassese] at 13.

[10] Dijk at 74 (referring to enforcement as the ICTY’s achilles heel).

[11] Another important problem with the UNSC’s relationship with the ICC is that, at any time, the UNSC can employ Article 16 of the Rome Statute to halt the ICC’s prosecution for at least one year. If anything, this possible suspension makes the subject of this paper even more relevant.See Rome Statute, supra note 4, art. 16. NTD.

[12] Dijk at 71.

[13] This statement was also likely a nod towards troop- or resource-contributing non-parties such the U.S.

[14] Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 [Rome Statute] Article 87(1)(a)

[15] Rome Statute Article 87(7) (Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.)

[16] See UNSC Res. 808 (1993) (on the desirability of establishing the ICTY) “this situation [within the territory of the former Yugoslavia] constitutes a threat to international peace and security’, [and the UNSC is determined] to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.’) See also UNSC Res. 827 (1993) establishing the International Tribunal and UNSC Res. 995 (1994) (establishing the ICTR which similarly finds a threat to international peace and security and expresses a desire to “put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.’)

[17] Pietro Gargiulo “The Controversial Relationship between the International Criminal Court and the Security Council,” Essays on the Rome Statute of the International Criminal Court vol. 1 (Ripa di Fagnano Alto : Il Sirente, 1999)

[18] Richard J. Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals” Journal of Law & Policy [Vol. 5:119] [Goldstone] at 120 (Benjamin B. Ferencz, former Nuremberg prosecutor states, “there can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.”

[19] Prosecutor v. Blaskic, Case No. IT-95-14, International Criminal Tribunal for the Former Yugoslavia, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber, 29 October 1997 at para. 15-16 [Blaskic, 29 October 1997].

[20] Arangio-Ruiz.

[21] UNSC Res. 1973 (2011) [emphasis added].

[22] Supernor 229.

[23] Goldstone at 121 (For the purposes of this paper the ICC has adopted similar subject-matter jurisdiction.)

[24]See Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) 1155 U.N.T.S. 331, entered into force 27 Jan. 1980, art. 53.

[25] Supernor at 220.

[26] As stated in the ICJ Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, 1970 ICJ Reports 3, at 32. “[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

[27] See, for instance, Judge Koroma in his separate opinion in the ICJ Arrest Warrant case, stating that “universal jurisdiction is available for certain crimes such as war crimes, crimes against humanity, including the slave trade and genocide.” Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice 1997-2002, ST/LEG/SER.F/1/Add.2, 2003 [ICJ Summary], at 216.

[28] see Polyukhovich v. The Commonwealth of Australia and Another (1991), 172 Commonwealth Law Reports 501 F.C. 91/026.

[29] UNGA Res. 3074 (1973) at para 3.

A Mandate to Arrest Gaddafi – unfinished arguments…

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