Jan 2, 2012


By  Hans Köchler
President of the International Progress Organization, Professor at the University of Innsbruck.

I want to talk about the manipulation of international law by making particular reference to the exploitation of the International Criminal Court in the Libyan case as it developed this year.

I fully share the analysis of Roland Dumas on the international system and the transformation of the goals of the Atlantic Alliance. Regarding the manipulation, I see two aspects. 
First, the Security Council of the UN was used as a tool by the member countries of NATO to justify what is, in fact, a colonial-style intervention.
The other aspect that I would like to highlight concerns the International Criminal Court which, in turn, has been exploited, that is to say, used as an instrument by the Security Council to give this military operation a legal and humanitarian covering.

I must say that I begin to question whether NATO has no ambition to replace the International Committee of the Red Cross, so called because it was limited to the protection of civilians in this operation!
Regarding the history of the Resolutions of the Security Council, we see what I would call an abuse of Chapter 7 of the UN Charter. This chapter governs collective security. We see this trend since the first Gulf War in 1991. The Security Council, in resolutions that are supposed to have legal force, because they fall under Chapter 7, used phrases and words completely inaccurate. I mean, the phrase "all necessary means", which was in the resolution that preceded the Iraq war in 1991 and returns this year in Resolution 1973 ("all necessary measures"). Such formulations can open the door to arbitrary action and moralizing on the part of countries who can conceal their true motives and intentions.

The intervention in Libya was in reality a war of aggression that has been legitimized as an act of collective security. I consider it highly problematic and even dangerous that, obviously, it authorized a military alliance composed of member states of the United Nations to emerge as a self-appointed executioner of UN resolutions. For me, this represents a real deviation from the original goals of NATO where he is in no credible talk of military crisis management that does not fall under Article 5 of the NATO (the Article 5 is the section that provides defensive military operations).
Protection and true motives
NATO is no longer recognizable today. 
We can no longer say that the alliance is committed to the mutual defense of its members. It has become an instrument of domination. But there is a new element in this case, which concerns me greatly. 
That is the special and strange role which was granted to the International Criminal Court. This role is similar to that played by the International Criminal Tribunal for the Former Yugoslavia at the time of the operation conducted by NATO against Yugoslavia in 1999

The two situations are similar structurally: in both cases, there was a plan to intervene militarily in a country and an international court issued an arrest warrant for political leaders of this country when the belligerent countries needed to justify their intervention before public opinion. I want to draw your attention to some aspects of the instrumentalization of the ICC in respect of the integrity of international law. I will develop my argument in five points.

1. There is a fundamental legal issue concerning one of the articles in the Rome Statute, the treaty that created the ICC. Article 13b gives the Security Council of the United Nations the right to refer a suspicious situation at the International Criminal Court in the case where the ICC has no jurisdiction because the country in question is not a state party the Rome Statute. It seems pretty obvious that this article of the Rome Statute is a violation of fundamental principles of international law, ius cogens (the mandatory standards of international law), and in particular the Vienna Convention on the Law of Treaties which states that 'no State is bound by a treaty it has not ratified. There is an additional irony. In its legal structure, the ICC makes no part of the UN: it is independent of it. But the Statute gives the Security Council the right to interfere directly in the way the Court exercise its jurisdiction.

2. The second issue concerns the artificial determinations that the Security Council is obliged to make in relation to international criminal justice. This is a problem that relates not only referrals of situations to the ICC. It is also a problem that concerns the creation of ad hoc tribunals such as those for Yugoslavia and for Rwanda. I mean that the Security Council in order to refer a situation as he did in the Libyan case, must present this reference so that a legal act, an indictment is presented as a coercive measure to maintain peace and security.

3. The third aspect concerns the formulation of Resolution 1973 passed February 26, 2011. I am not alone in considering this resolution as an act ultra vires, that is to say an act in which the Security Council went beyond its own jurisdiction and abused its power. But the resolution also violated the Rome Statute. In paragraph 6, the Security Council refers the situation in Libya to the ICC but under the condition that the citizens, staff and officials of non-signatories of the Rome Statute are not subject to the jurisdiction of the Court. 
The irony is that Libya itself is not a signatory! It seems clear that, whatever the legal problems with Article 13b, the Security Council has no right to limit the jurisdiction of the ICC once it has done its job and referred a situation to it.

4. The Prosecutor of the ICC seems to have acted on a political rather than legal basis It takes its decisions selectively and applies a double standard measures. On the basis of the reference, he was kind enough to issue arrest warrants against three Libyan officials, including one who was recently brutally murdered with the help of NATO. It should be noted that no official of any member country of NATO intervened in Libya has been under investigation by the prosecutor's office despite ample evidence of war crimes by the Alliance. Since the beginning of the military operation, in fact, there have been many documented cases of deliberate destruction of civilian targets and civilian infrastructure. All these acts are war crimes as defined by Article 5 of the Rome Statute itself. Furthermore, it appears that the prosecutor refused to investigate the circumstances surrounding the assassination of Libyan head of state. This murder was not only a war crime but also a contempt of court because the head of state was the subject of an arrest warrant and now the Court can not exercise jurisdiction over him.
Ocampo justice

5. My final point concerns the latest example of political opportunism on the part of Mr. Ocampo
Allow me to use, with irony, of course, the terminology of the ICC itself. Mr. Ocampo has decided to "defer" the prosecution of an individual who has been arrested at the judicial system of Libya which in reality is completely nonexistent. 
He said publicly that he does so on behalf of the principle of "complementarity" as it is in the Rome Statute. This means that the ICC Prosecutor himself does not take seriously the role and integrity of its own Court because the complementarity means that the Court refers a case to national authorities if they are competent to judge in compliance with international standards. In other words, Mr. Ocampo has given his blessing to the judicial system of a country which is currently reigned only by the law of the jungle. 
 In my analysis, the ICC Prosecutor has completely discredited the entire project of international criminal justice. This whole unfortunate affair, and the way the ICC has allowed the use of political institutions, once again stressed how the ideals of international justice, in particular international criminal justice, can never be achieved where the political interests are involved and the old great power politics can interfere with the judicial process. 

The Libyan case, which is not closed for the ICC, has reminded us that the ICC is actually a ACC an African Criminal Court. This is certainly not the vision of international law from those who believed that the end of the Cold War would allow the United Nations and other international organizations to act on the principles of international law and equality among nations.

Translated by Libya S.O.S.  ...  Original article in French (here)
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