In a previous post, I dealt with the question whether Libya has an obligation to surrender Saif Al Islam Gaddafi pending any admissibility challenges it may choose to make. To put the question in other terms, if Libya does make an admissibility challenge may it hold on to Saif for the duration of the time it takes for that challenge to be determined by the ICC. The discussion that has taken place on this issue thus far has focussed on the interpretation of the relevant provisions of the Rome Statute. My previous post also focussed exclusively on the Rome Statute. However, thus far commentators on this question have simply taken it for granted that the Rome Statute provides the applicable law and regime regarding the obligation of Libya to cooperate. The assumption has also been that if the Rome Statute provides a basis on which Libya may suspend its obligation to cooperate with the ICC then Libya is entitled to rely on the Statute’s provisions allowing such suspension. Although this may well be right, it cannot simply be assumed. There is a question as to whether in the case of a Security Council referral, the obligation of cooperation is one which is determined by the Statute or whether that obligation is determined instead by the Security Council’s resolution that makes the referral. In short, can the Security Council modify the obligation of the State to cooperate such that the State has a more (or less) extensive obligation than is provided for in the Rome Statute?
The Rome Statute provides an obligation for States parties to cooperate with the ICC but also provides many exceptions to that general obligation to cooperate, some of which I referred to in my earlier post on Saif Gadaffi. However, in the two cases when the Security Council has referred situations to the ICC, the Council has decided that the relevant States (Sudan and Libya):
“shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” [see para 5 of Security Council Resolution 1970, by which the Security Council referred the Libya to the ICC, the Council].
Does the obligation to “cooperate fully” mean an obligation to cooperate fully as required by, and only in circumstances required by the Statute or does it mean something else? In the particular context of the obligation to surrender Saif Gaddafi, I have argued that the Rome Statute permits a suspension of this obligation where a challenge to admissibility is made. However, it might be argued that what the full cooperation provided for SC Res 1970 requires is that Libya surrender Saif to the Court, as the Court has requested. Libya is not a party to the Rome Statute, and is therefore not bound by that treaty (qua treaty). It also does not have rights as such under the treaty. Any obligations that Libya has with regard to the International Criminal Court must be derived from the Security Council resolution which refers the Libyan situation to the ICC.
The question whether the Security Council may modify the cooperation obligations provided for in the Statute was raised by Goran Sluiter, in 2008, shortly after the Sudan referral in an article entitled “Obtaining Cooperation from Sudan – Where is the Law?” In that article, Professor Sluiter noted that the way in which the Security Council had framed Sudan’s obligation of cooperation with the ICC left it unclear whether Sudan could invoke grounds for refusing cooperation which were provided for in the Statute.
The first question here is whether, in the context of an ICC referral, the Council can impose obligations on States which go beyond what the Rome Statute has imposed. It seems clear to me that the Council can do this. The powers of the Council are not limited by the Rome Statute. The Council’s powers are determined by the Charter and not by the Rome Statute. In fact, in Res SC 1970 the Council did go beyond the Rome Statute when in paragraph 6 of SC Res 1970, the Council “decide[d] that nationals of nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State”. Arguably, this imposes an obligation on States not to surrender such persons to the Court, though the Rome Statute might require it.
The second question is whether the Council has imposed obligations of cooperation that go beyond the Statute when it adopted paragraph 5 of SC Res 1970. It may be observed that there is a difference between the way in the SC has framed the cooperation obligation of Libya and Sudan with regard to the ICC and the way in which it framed the cooperation obligation of all States with regard to the ICTY and ICTR. As already noted, with the ICC, the SC has simply provided an obligation to “cooperate fully . . . pursuant to this resolution”. However, under Resolution 827, para. 4, the SC decided that “all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal . . .” (emphasis added). So it was clear with regard to the ICTY that the cooperation regime was that in the Statute of the ICTY. It is not clear why this was left out with regard to the ICC. Perhaps there was some nervousness about making it explicit that the Council was imposing the Statute on a State non-party to it.
However, though the Council does not explicitly incorporate the Statute into its resolution I think the better view is that Council has implicitly adopted the regime of the Statute into Res. 1970. It is worth noting that the Statute provides in Art. 86 that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” So the words “cooperate fully” in Res 1970 mirror the obligation of cooperation in the Statute. This makes it reasonable to conclude that the two instruments provide for the same obligation. Also, as I argued in an article of a couple of years ago (“The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” in 2009 Journal of International Criminal Justice), the fact that the Security Council provides no procedure by which investigations or prosecutions at the ICC are to take place must mean that it expects the Statute to be the governing law. In order for the decision to refer a situation to the Court to be effective, one must imply a decision that the Court take such action as it can take. The Court can only act in accordance with its Statute since Article 1 of that Statute provides that “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.” This position is consistent with that taken by the Pre-Trial Chamber in the Bashir Arrest Warrant decision. In justifying its exercise of jurisdiction over a head of State of a non-party, the PTC stated in (para. 45) that the Security Council has accepted that investigations and prosecutions from the Darfur situation
“will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.”
This therefore means that Libya should be regarded as relying on any exceptions that exist in the Statute with regard to the obligation to cooperate.
A third question would arise if the Security Council had imposed obligations on Libya that go beyond the Statute. In such a scenario, there would be question of what would be the means for enforcing this obligation which arises under an SC Res and not the Statute? In particular, would the ICC be in a position to enforce such an obligation? Although Libya may have the obligation under the UN Charter and although under Art. 103 of the Charter provides that obligations under the Charter prevail over other treaty obligations, it is not clear that the Court could enforce such an obligation. The question would be whether the Court could apply a source of law which departs from explicit provisions of its Statute. Art. 21 of the Statute gives priority to the Statute over other sources of law (perhaps except for human rights law) and the Court is bound by its Statute (Art. 1).