Last Monday, the ICC Prosecutor requested that an International Criminal Court (ICC) Pre-Trial Chamber issue warrants for the arrest of Libyan leader Muammar Gaddafi, his eldest son Saif Al-Islam Gaddafi and Abdullah Al‐Senussi who is head of military intelligence in Libya (and Gaddafi’ brother in law). All three are accused by the Prosecutor of commiting crimes against humanity in Libya. Libya is not a party to the ICC statute and the situation in Libya was referred to the ICC by the United Nations Security Council in Resolution 1970 .
There are a few interesting thing to note about the request. First of all, there are, of course, similarities with the Bashir arrest warrant. But there are also differences. In both cases the head of State of a non-party to the Rome Statute is subject to an arrest warrant after a Security Council referral. As we have noted on this blog in many previous posts (search for ‘Bashir’ on the right), the fact that a head of State is indicted raises issues of the immunity. The issue is not straight forward but I have argued that the effect of the Security Council referral is that Sudan (now read Libya) is to be treated as bound by the Rome Statute with the effect that Article 27 which removes international law immunities for parties has the same effect for that State. However, I have also criticised the Judges of the ICC for not addressing the immunity question. In the Gaddafi case, at least at this stage, the international law immunity issue does not yet arise, or at least does not arise in the same way. The reason for this is that while the Prosecutor has requested an arrest warrant for Gaddafi he has not requested that States other than Libya surrender Gaddafi. In his request, made under Art. 58, the Prosecutor states that:
“65. The Office submits that, if this Application is granted and the Court proceeds to issue warrants of arrest, the Court should exclusively transmit a request for the arrest of the suspects to Libyan authorities.66 … Addressing a request at this stage to other States on whose territory, according to the information available, the suspects are not physically present would appear superfluous and contrary to the express scheme foreseen in Part 9.67. The submission to States of requests in the abstract, without concrete foundation, would run contrary to specific nature of the judicial assistance process as crafted under Part 9 of the Statute and as, for example, also practiced between States in matters of mutual legal assistance at the inter-State level. It is the experience of the Prosecution that sending requests to States that cannot be fulfilled, because of the absence of essential underlying facts enabling their execution, may occasion uncertainty in that State as to the purpose of the request, may lead the State to revert back to the requesting organ to ascertain whether it has any information that would support its conclusion that such a request is warranted, or may cause it to question the conformity of the request with statutory requirements or to reject the request.”
One can only wonder by the Prosecutor has taken this approach. It is contrary to the approach taken with respect to Bashir and even appears to suggest that the approach taken in the Bashir case is contrary to the Statute. It is a curious approach for the Prosecutor to take as it would mean that were Gaddafi to travel outside Libya without warning the State he travels to would not be obliged to arrest him.
The approach nonetheless affects the position with respect to potential immunity. The key issue immunity issue in the Bashir case, is that the ICC has in granting the Prosecutor’s request also made a reqest to all ICC parties that they arrest him if he were to come into their territory. Heads of State are ordinarily immune from the jurisdiction of foreign States (including immunity from arrest) so the question has been whether other States are obliged (indeed entitled) to arrest Bashir when he visits (eg when he visited Chad, Kenya, Djibouti and other States). Rather than complaining to the Security Council that States were not complying with the warrant, the Court ought to have addressed the potential legal issue at stake. However, in the case of Gaddafi, the Prosecutor is not (yet) asking any foreign State to violate the immunities that Gaddafi would ordinarily have under international law.
The potential immunity issue that arises, at this stage, in the Gaddafi case is whether Gaddafi is immune from the jurisdiction of the ICC ( as opposed to immune from arrest). I think there is no immunity for Gaddafi from ICC jurisdiction. One way to answer this question is to say that there are no international law immunities before international tribunals as Paola Gaeta argues. In my view, there can be immunity from international tribunals (see my article here) but in this case, as in the case of Bashir, that immunity is removed because of the Security Council referral (see article here).
One aside with respect to the immunity issue is that the Prosecutor has referred to Gaddafi’s eldest son, who the Prosecutor is bringing charges against, as the de facto prime minister of Libya. In short, he is saying he is the head of government of that country. If so, then immunity issues would arise not only with respect to Gaddafi senior but also with respect to Gaddafi junior!
A second interesting issue with regard to the arrest warrant request is that, thus far, the Prosecutor has chosen to charge only for crimes against humanity and not for war crimes. In the Prosecutor’s statement, he said that ” The Office will further investigate allegations of massive rapes, war crimes committed by different parties during the armed conflict that started at the end of February . . .” The reason this is of interest is that it is not clear when the armed conflict in Libya started. War crimes are, of course, violations of international humanitarian law and there can only be violations of IHL in time of armed conflict. There is an armed conflict (in fact more than one) going on in Libya right now. But determining when it started is a precursor to determining whether war crimes were committed at any point in time. And determining whether acts are war crimes or not is important because unlike with crimes against humanity, there is no need to prove that the attacks are widespread or systematic.
As early as mid to late February of this year, a large number of authoritative bodies asserted that the Libyan authorities were committing violations of international humanitarian law. In SC Res. 1970, which was adopted on Feb. 26, the Security Council:
Welcom[ed] the condemnation by the Arab League, the African Union, and the Secretary General of the Organization of the Islamic Conference of the serious violations of human rights and international humanitarian law that are being committed in the Libyan Arab Jamahiriya,
The UN Secretary General made similar assertions on Feb. 21. In my view it is highly doubtful that there was an armed conflict in Libya in this period. The period in question was when there were protests in Libya and when Libyan troops are alleged to have broken up those protests with violence, including attacking protesters from the air. For there to have been a non-international armed conflict at the time there would need to have been (i) an intensity of fighting and (ii) organized armed groups. In mid to late Feb, it seems difficult to identify an armed groups other than the Libyan armed forces. There were reports of some members of the Libyan armed forces refusing to obey orders, defecting abroad but I couldn’t at the time (and I did search quite a bit) find any reports of another organized armed group. The present rebels seem to me to have come into being later than this. The fact that the ICC prosecutor has not yet charged for war crimes suggests that he is also struggling to find enough evidence to show that there was an armed conflict in Libya at the time when the protests were being quelled.
Although I think the international organizations mentioned above were wrong to speak of violations of IHL in the period of protests in Libya, I wonder whether this episode will not be looked upon later on as lowering the threshold for armed conflicts. One can assert that States in these bodies are wrong to make the decisions they make but of course they are the law makers in the international community. So, though wrong now, what they say may also be regarded as indications of opinio juris for the future. Declarations by the Security Council of violations of IHL in non-international armed conflicts like in Iraq in the 1980s are now viewed as important indications of a shift in the law regarding non-international armed conflict. Libya may be a turning point regarding the question of threshold of non-international armed conflicts