The Multilateralist

Could the ICC prosecute Americans for civilian deaths in Libya?

Last week, I wrote about Russia’s prodding of the International Criminal Court to investigate any NATO war crimes in Libya. In that post, I argued that the UN Security Council resolution referring the Libya situation to the court precluded prosecutions of non-ICC member state nations. Not so fast, says Kevin Jon Heller, writing at Opinion ...

Last week, I wrote about Russia’s prodding of the International Criminal Court to investigate any NATO war crimes in Libya. In that post, I argued that the UN Security Council resolution referring the Libya situation to the court precluded prosecutions of non-ICC member state nations. Not so fast, says Kevin Jon Heller, writing at Opinion Juris. He argues that the Security Council can’t refer only part of a situation to the court:  "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."

Heller and I agree that any prosecution of NATO forces is extremely unlikely,and the question of ICC jurisdiction will almost certainly remain an academic one. But it’s an academic question that gets at an important dynamic: the relationship between the ICC and powerful states. Mark Kersten offers a great take on that here:

A wider issue, alluded to by Heller, Bosco and others, remains the relationship between the UN Security Council powers as the dispensers of ICC jurisdiction via referrals and the ICC as the guardians of the Rome Statute. The Libyan referral…was tailored to the political interests of the most powerful states on the Security Council. Not only did Operative Paragraph 6 seek to exclude citizens of non-state parties from the ICC’s jurisdiction, the Council also restricted the Court’s temporal jurisdiction to crimes committed after February 15, 2011, in contradiction to the Rome Statute which gives the Court jurisdiction back to July 1, 2002. But if  these restrictions on the ICC contradict and contravene the Court’s legal mandate, has the OTP made an issue of it? The answer is no.

The OTP has remained completely silent on both the imposed restrictions on who can be investigated and prosecuted and the time period when the ICC can investigate. This silence falls precariously close to re-affirming the view that the infusion of political interests into international criminal justice will be unchallenged at best, eagerly accepted at worst.

 Twitter: @multilateralist

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