A recent report released by Human Rights Watch, entitled “Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya”, has called upon NATO to thoroughly investigate any of its air strikes in Libya last year that killed civilians. NATO reacted sharply, exclaiming that it “deeply regret[s] any instance of civilian casualties for which NATO may have been responsible,” but that “the specific targets struck by NATO were legitimate military targets”and that the organization did everything possible to ensure that the loss of civilian life was minimal. The report and NATO’s response to it have recently triggered a timely debate: could, should and will the International Criminal Court investigate NATO’s role in the Libyan conflict?
NATO was involved in a massive aerial campaign in Libya for eight months, there is no escaping that civilians were killed as a result, and any instances where this occurred should be investigated. If NATO or its member states are unwilling to thoroughly and transparently investigate incidences where their bombings resulted in a significant number of civilian casualties, it seems rather clear that the ICC should investigate NATO’s actions in Libya. This, of course, does not mean that NATO is guilty of committing war crimes or that NATO’s intervention should be vilified. There is an ever-present risk of demonizing NATO and the US, not for what they do, but simply for being Western. As David Rohde recently put it: “Some of the perceptions are exaggerated. The U.S. and NATO are not evil incarnate, nor are they perfect.”
There is a general acceptance that NATO’s intervention resulted in a remarkably low number of civilian casualties. Notably, while it was critical of NATO in some cases, the report of the UN Commission of Inquiry on Libya concurred that NATO had taken extensive precautions to prevent civilian deaths. HRW also accepts that civilian casualties were likely minimal. In this context, it is worthwhile highlighting that neither HRW nor the Commission of Inquiry have called on the ICC to investigate NATO, believing that NATO can and should investigate cases of civilian casualties themselves.
Of course, NATO’s success in minimizing civilians deaths does not excuse those instances where there were civilian deaths from being investigated. If there exists any right to truth for victims and survivors to know what happened to their family members, friends and communities, investigations into those aerial missions that resulted in civilian casualties are necessary.
Perhaps the most persuasive reason proffered as to why NATO shouldn’t be investigated is the argument that it would make future NATO interventions in response to atrocities less likely. But this argument presumes that NATO’s mandate cannot be enchanced from being investigated. On the contrary, an investigation by the Court that clears NATO of war crimes would boost the military organization’s credibility in combating atrocity crimes. It would also keep pressure on NATO to continue efforts to minimize the possibility of any civilian deaths in contexts where it intervenes.
Accepting that the ICC should investigate NATO crimes, the question becomes can they?
There is no legal barrier to investigating citizens of those NATO states involved in Libya which are also signatories to the Rome Statute. A more controversial question, however, emerges with citizens of NATO members who are not members of the ICC, most obviously the United States. As I have argued elsewhere, the UN Security Council’s referral of Libya to the ICC, under Resolution 1970, was politically tailored by the Security Council (see also my recent academic analyses [here and here]). In this context, the US pushed through Operative Paragraph 6 of Resolution 1970 which excludes citizens of non-state parties from the Court’s jurisdiction, by stipulating that the Council:
“Decides that 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”
David Bosco argues that Operative Paragraph means that the “court would not be able to reach American forces.” However, drawing on Rob Cryer’s excellent analysis of the Security Council’s 2005 referral of Darfur to the ICC, Kevin Jon Heller convincingly argues that the ICC is, in fact, able to investigate any alleged crimes committed by American citizens, concluding that “[n]othing in the Rome Statute gives the Security Council the right to revise the Court’s jurisdiction”.
Assuming that Heller is right and the ICC can investigate any alleged atrocity crimes committed by non-states parties in Libya, we have covered both whether the ICC should and whether the ICC can investigate any alleged crimes by NATO member states in Libya. This leads us to perhaps the trickiest – and most frustrating – question: will they?
Back in November 2011, ICC Chief Prosecutor, Luis Moreno-Ocampo said that alleged crimes by NATO would be investigated “impartially and independently by the prosecution.” Moreover, as was made clear by Moreno-Ocampo’s report to the UN Security Council last week, the OTP has, in fact, done some preliminary investigations into NATO’s actions. Moreno-Ocampo noted that the Office of the Prosecutor (OTP) has focused on Article 8 of the Rome Statute, detailing what the Court regards as war crimes and specifically, Article 8(2)(b)(iv) which considers as a war crime:
“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
However, Moreno-Ocampo was quick to inform the Security Council that the OTP had no information to suggest that NATO “authorized the launching of strikes” which could fall under the category of war crimes outlined above. Moreno-Ocampo thus concluded that the OTP would monitor NATO and Libyan investigations into incidents where NATO bombings caused civilian deaths of sufficient gravity as to warrant attention from the Court.
No one who isn’t privy to the OTP’s internal machinations will know whether their investigations have been thorough or not. No report has been released on the ICC’s investigations into NATO and it remains unclear whether the OTP is legitimately investigating instances of civilian deaths resulting from NATO’s intervention or whether it is wrapping itself up in legal talk and paying lip-service in response to demands that NATO’s actions be thoroughly investigated.
Moving Forward: Confronting Hypocrisy
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, as noted above, 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.
This speaks to critical questions about the legal, moral and political direction of the OTP. Under Moreno-Ocampo, the OTP strategically aligned itself with the world’s most powerful states, clearly believing that their support was necessary to legitimizing the institution, regardless of the political baggage that it brought along.
With international criminal justice featuring almost daily in the media and in the demands of the oppressed and violated, expectations that justice is evenly and fairly achieved will only increase. No self-respecting human rights advocate can argue that serious violations of international law by Western powers – whether it be the fire-bombing of Dresden in WWII, NATO’s bombing of Serbia in 1999 or the US and UK’s role in torture and rendition cases – should have escaped investigation or accountability. Anyone who truly believes in the project of international criminal justice has to readily admit to these serious gaps in the project – not in order to concede that the project is fundamentally flawed but because only by recognizing these shortcomings can the project be furthered, the playing field be made equal, and international justice be impartial and universal.
In less than a month the OTP will welcome Fatou Bensouda as its second-ever Prosecutor and many have high hopes for her. But it remains to be seen whether Bensouda’s tenure will be marked by a greater confidence and courage in confronting the hypocrisy and political manipulation of the Court by the world’s most powerful states. But, for the project of international criminal justice, we should better hope it does and expect nothing less.