The ICC and Libya: Contradictions in International Law Undermine ICC’s Credibility

25 Aug

Assuming the Gaddafi regime is finally toppled, the Libyan endgame has revealed a major contradiction in international law that undermines the credibility of the International Criminal Court. The U.N. Security Council’s Resolution (UNSC 1970) referring Libya’s case to the ICC seems to obligate a new Libyan government to hand Gaddafi over to the Court. However, the Court’s own statues (and UNSC 1970) make it very clear that states not party to the Rome Statute have no obligation under the Statute. This includes Libya. The Rome Statute also only grants the ICC jurisdiction when domestic courts are unable or unwilling to prosecute under a standard called complementarity.

International actors have tried to resolve this contradiction in several ways. The United States has taken the position that a new Libyan government can decide where and how to try Gaddafi. The ICC has resolved the contradiction differently, declaring that Libya must turn Gaddafi over to them per UNSC 1970, but then ICC judges will have to determine whether or not the Court has jurisdiction under complementarity. While this would have the advantage of giving the Court some much needed credibility, the ICC has no jurisdiction to resolve the contradiction because the source is a body of law outside its purview. As a result, this contradiction in international law threatens to undermine the Court’s credibility.

As Julian Ku has pointed out, Libya’s obligation to turn Gaddafi over to the ICC actually depends on how you interpret the UN Charter not the Rome Statue. Article 41 of the UN Charter says:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

It is certainly not clear from Article 41 whether or not surrendering a war criminal to an international court is something the Security Council can order a sovereign state to do. If it can, then Libya is obligated as a UN member to hand Gaddafi over to the ICC as the ICC claims. If not, then Libya has no obligation to the ICC. Unfortunately, the UN Charter does not provide for one authoritative interpreting body to resolve questions of interpretation. Instead, it is subject to multiple levels of interpreters whose interpretations are not binding on each other. The most likely, and arguable most appropriate, venue for resolving the contradiction is the Security Council itself.

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