Security Council Adopts Resolution 1970 (2011) with respect to Lybia

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Yesterday the UN Security Council unanimously adopted Resolution 1970, whereby it (1) imposed an arms embargo on Lybia; (2) imposed targeted sanctions, including travel bans and asset freezes, on high-level persons in the Lybian regime; (3) and referred the situation in Lybia to the International Criminal Court. This is the second UNSC referral to the ICC, the first after Darfur and the first to be passed unanimously. The full text of the resolution is available here, and a UN press release can be found here.

The resolution also makes several notable findings, such as that the ‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’; it also requests Lybia to respect both human rights and IHL, which indicates that the UNSC considers there to be an armed conflict in Lybia, and that IHL and human rights apply in a complementary fashion (this is of course not the first time that the Council has said something similar).  Notably with regard to the ICC referral, as with Darfur the resolution does not expressly say that Gaddafi will not be entitled to head of state immunity (assuming that the ‘head of the revolution’ is indeed a head of state under international law), even though that inference may be reasonably drawn – that issue might of course become moot if Gaddafi is actually toppled, which is perhaps more likely than not.

As for the targeted sanctions regime, like with the terrorist sanctions regime before it there is very little here with regard to guarantees of due process for the listed persons. Will the Gaddafis, led perhaps by LSE-PhD holding Saif (who may or may not had plagiarized his PhD on human rights and global governance), follow the bright example of the late Saddam Hussein and file an application with the European Court of Human Rights to protect their (presumable) Swiss millions? Bearing in mind the manifest deficit in the dictatorial psyche when it comes to self-irony, I wouldn’t put it past them.

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Michail Vagias says

February 27, 2011

This is a very interesting analysis of the present situation as it unfolds.

In addtion to issues of immunity, I consider that an equally interesting question would concern the legal importance of the factual determination made by the Security Council that there are in fact

‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population" which "may amount to crimes against humanity".

Although the Council refrained from determining the existence of crimes against humanity as such, it did make a clear factual determination - that there are in fact attacks against civilians that qualify as 'widespread' AND 'systematic' for the purposes of article 7 ICC Statute.

Should the Court take this factual determination by the Security Council as a determination from which it cannot depart, or is the Court (and the Prosecutor) free to make their own assessment and determination as to whether these facts actually took place and meet the legal characterisation of the chapeau of Article 7 ICC Statute? In these circumstances, can the Court actually depart from the finding of the Security Council that there are attacks which are both 'widespread' and 'systematic' if it considers that the standard of proof is not met?

In other words, is it possible that the same facts that qualify as 'widespread and systematic attacks against civilians' for the Security Council are not classified as such by the ICC?

Arguably, and considering the nature of the institutions involved (political v. legal), the Court would be the only one able, in the exercise of its kompetenz kompetenz, to determine the scope of its subject matter jurisdiction, once a situation has been referred to it. What weight to attach then to the SC's factual finding for the purposes of individual criminal responsibility? Does this finding constitute undisputed evidence that 'widespread and systematic attacks against civilians' occur in Libya for the purposes of ICC investigations or would the future suspects/accused before the Court be in a position to dispute the facts and/or their legal classification? Perhaps it would have been better if the Council refrained from making such determinations in the preamble that may prove prejudicial to the rights of the accused and instead referred the entire situation to the Court for examination and investigation. As things stand, it seems highly unlikely that the Court will depart from the SC's factual finding(s) in Res. 1970. Be that as it may, it remains to be seen how the Court will approach this delicate issue in the future, as an independent judicial institution.

max says

February 28, 2011

Rubbbissssh!where was the security council when the arms were being sold! did they think it was for hunting in the desert forest!yes the forest in the desert!it was obviously going to be used on humans at some point!So this so called leaders should stop pretending!they can either stop the arms industries or contnue pretending to represent the world till they retire and end their pention!
If the UN is so powerful why cannt they open the world trade organisation for everyone to have a fair deal!I am affraid the UN is fast becomming the league of nations!

jpaust says

February 28, 2011

There is no head of state immunity in an international criminal tribunal or, especially, the ICC. See, e.g., Rome Stat. of the ICC, preamble and art. 27. No international criminal law treaty provides immunity for a sitting or former head of state and some expressly deny any immunity (e.g., the Genocide Convention and the treaties on enforced or forced disappearance.
With respect to customary crimes against humanity, note that ICC jurisdiciton is restrited beyond what customary international law can reach, but attacks on civilians by the Libyan government or organized armed groups that are widespread or systematic cna be covered under art. 7. Concerning the broader reach of customary international law, see, e.g.,

Elias Davidsson says

August 29, 2012

According to common view, the Security Council would be entitled to determine any circumstance or fact as threatning international peace and security, including for example if the author of this lines is eating pizza at the wrong hours. The fact that the Security Council most probably make such absurd claims does not, however, exclude that it might engage in contrived fact determinations, if its permanent members so wish, because of their converging interests.

On September 12, 2001, the Council indeed made a contrived determination, namely that the attacks of the previous day were acts of "international" terrorism. The Council was not in a position at that time to make this factual determination and has not engaged in an independent fact-finding exercise to establish this fact.

Are states obligated to implement binding resolutions by the Council, if these were adopted on contrived grounds and in bad faith?