Revolutions in North Africa and the International Criminal Court: The new role of the US Administration

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1 Revolutions in North Africa and the International Criminal Court: The new role of the US Administration ESADEgeo Position Paper 16 June 2011 Amparo Martínez Guerra Ph.D. in criminal law. Professor in international criminal law at the Universidad Pontificia de Comillas, ICADE. Hauser Global Fellow, New York University This paper is part of the R&D Project SEJ /JURI, MEC Nuevas reformas sustantivas y procesales en el Sistema Jurídico Penal.

2 ABSTRACT The stance adopted by the USA in the UN Security Council as regards the situation in Libya indicates a change of attitude towards the International Criminal Court. This stance adopted by the new US administration has also been reflected by abandoning both the signature of bilateral immunity agreements with third countries and the freezing of cooperation and military aid. Nevertheless there is a serious risk that the signature of this sort of agreements will be emulated by countries such as Tunisia and Egypt which have stated their desire to become states party to the Court. The new scenario is the perfect opportunity for Obama to clarify his stance vis-à-vis the International Criminal Court and the scope of these agreements in order to avoid hindering the Court s activities. Las revoluciones norteafricanas y la Corte Penal Internacional: El nuevo rol de la Administración Norteamericana I For slightly more than five months the world has witnessed in astonishment the fall of dictatorships that had governed countries in Mediterranean Africa for almost three decades. Far from culminating with the ousting of those in power, the effects of the first uprising that began in Tunisia in January 2011 triggered 2

3 off discussions about issues in the realms of not only politics but also criminal law. The most noteworthy issues are: the situation in Morocco following an autumn of great unrest due to the West Sahara conflict; Tunisia and the ousting of President Ben Ali; the riots in Algeria in January that resulted in Bouteflika s announcement of constitutional reform; Egypt and the departure of Hosni Mubarak; the uprisings and repression in Bahrain as the foremost country on the Persian Gulf; the Yemeni people against President Saleh s regime; and in recent weeks, the citizen protests in Syria against President Bashar al-assad. But the most interesting case in terms of international criminal law is undoubtedly Libya, for several reasons. II A little more than three months ago, the United Nations Security Council (UNSC) decided to refer the situation in Libya to the prosecutor of the International Criminal Court (ICC) to start an investigation into the events that had occurred in that country since February 15 th. This was the second time, to date, that the Council applied the mechanism provided for in article 13 b) of the Rome Statute (RS). As happened with Darfur, it was immediately obvious that there was apparently international consensus about the gravity of the facts. However, although the same legal solution was proposed for the Libyan and the Sudanese scenarios, there were considerable differences: the peculiarities of the nature of the conflicts and the stance taken by the USA, a key player. The similarities between the two are obvious, in addition to the type of referral employed and the fact that both cases are active or latent conflicts. Both instances called upon a breach of the responsibility to protect by the Sudanese and Libyan presidents, as reflected not only in Council resolutions to refer situations to the Court 1 but also in the first international arrest warrant issued by the Pre-Trial Chamber against the president of Sudan. Likewise, the UNSC 1 See in this respect S/RES/1593 (2005) dd. March 31 st and S/RES/1970 (2011) dd. February 26 th. 3

4 refused to assign funds to this referral to cover part of the cost to the ICC in conducting the investigation and the ensuing procedures 2. Once again the entire economic cost of the investigations was borne by RS member states, as occurred in the case of Sudan 3. The Darfur situation was referred on March 31 st 2005 and the Libya situation on February 26 th The content of the referrals makes their intention very clear. In the first case, the referral authorises the investigation of events from July 1 st 2002 onwards, the date the RS became effective. The second referral is very specific and concerns only events from the 15 th of the same month. The response was therefore far broader in the case of the Sudanese conflict but faster in the case of Libya. Another considerable difference can be seen as regards form, in the strict sense of the word. The situation in Libya was referred to the Court with the unanimous vote of UNSC members whereas the US abstained about Darfur despite the great interest of the US Secretary of State at that time, Collin Powell, in the matter. The US adopted an active role in the Council instead of abstaining as in the past. This is no trivial matter bearing in mind the tense relationship between the US and the ICC from the outset and the well-known antagonism of George W. Bush s administration towards the Court. US ambassador John Bolton s unsigning of the RS on May 6 th 2002 was followed by a series of initiatives embodied in the passing of the American Servicemember Protection Act (ASPA) of and the Nethercutt Amendment of , the first of which prohibits legal or police collaboration of any kind between US institutions and the ICC and even prohibits the possible release of American citizens who might be in the Court s custody, a provision that led to the ASPA being dubbed the The Hague Invasion Act. The Nethercutt Amendment, the intent of which is the same, employs an agreement mechanism based very dubiously on RS article 2 S/RES/1970 (2011) dd. February 26th, section 8. 3 S/RES/1593 (2005) dd. March 31 st, section 7. 4 Set forth originally in the Supplemental Defense Appropriations Act of 2002 (HR 4775) 5 Approved as an amendment to the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2005 (H.R. 4818), signed on December 7 th

5 98 and makes on-going development and military economic aid 6 to third states subject to the signature of a bilateral immunity agreement in which the state undertakes not to hand US citizens over to the ICC. The signature of agreements of this sort, particularly between 2002 and 2007, set all alarm bells ringing not only because of the great impact on a large number of programmes under way, including strategic areas in the fight against international terrorism or drug trafficking, but also because they clashed head on with the EU viewpoint as regards the requirements demanded of countries applying to join the European project and their commitment to the ICC 7. It is highly significant that the first country to sign an agreement of this type was Rumania 8. This led the General Affairs and External Relations Council to adopt a series of principles in September 2002 to be applied by EU member states when signing agreements about the circumstances in which persons could be handed over to the ICC 9. The European Union s intention with this initiative was to prevent its work of promoting and collaborating with the Court from being boycotted by agreements entered into bilaterally between candidate countries and the US 10. It is patently obvious that the attitude of Obama s administration towards the ICC is completely different from that of its predecessor: not only because of gestures such as Hillary Clinton s support for the prosecutor s investigations of Kenya. The attendance and participation of a US delegation in the Review Conference held in Kampala in 2010 marked the return of the US to forums of this type, albeit motivated mainly by the desire of the US to lead the negotiations about crimes of aggression. There can, however, be no doubt that 6 International Military Education and Training (IMET), Foreign Military Funds (FMF) and Economic Support Fund (ESF) to be precise. 7 Common stances adopted by the EU on June 11 th 2001 as regards the International Criminal Court (2001/443/CFSP), L 155/19, dd ; 2003/444/CFSP dd , L 150/67, which revokes the former; and Resolution 2011/168/PESC passed by the Council on , L76/56, which revokes the one of Rumania ratified the RS on and signed a bilateral immunity agreement with the United States on Council Conclusions on the International Criminal Court dd , available at 10 This boycott was expressly acknowledged in the European Parliament s 2002 Resolution about the ICC. 5

6 the non-renovation of the withdrawal of economic and military aid approved in the Nethercutt amendment for any country refusing to sign a bilateral immunity agreement with the USA in 2009 was the main difference 11. The outcome is a shift from declared hostility towards the ICC to explicit support, albeit with certain nuances, despite which the official position of the new US administration towards the Court is still a complete mystery. That new position is also reflected in the legal stance adopted in relation to the Libyan conflict, as revealed by the wording of resolution 1970 (2011). Although, as mentioned earlier, the mechanism used to refer the situation to the ICC was the same as in the Darfur conflict, the shift in the US stance can be seen by comparing two very specific aspects of the Libya referral resolution. Unlike in the case of Darfur, the mechanism did not consist of granting these immunity agreements signed pursuant to RS art. 98 a carte blanche. Resolution 1970 (2011) makes absolutely no reference to such agreements, unlike in the previous instance. Nor does it make the slightest reference to problematic RS art. 16, which authorises the Council to cease any ICC investigations or procedures under way or prevent them from being initiated for a year, without prejudice to them being renewed annually: an article which the African Union has repeatedly insisted should be applied to the Darfur conflict. Notwithstanding this rapprochement to the Court, resolution 1970 (2011) reaffirmed the intention of the US, China and Russia to grant their nationals immunity vis-à-vis the ICC as regards crimes possibly committed within the framework of military or humanitarian operations, but only those authorised by the Security Council alone: unlike in the Sudanese precedent. It would have been too much to expect permanent UNSC members not party to the ICC to be subject to Court jurisdiction. 11 The last version in which it appeared was the Omnibus Appropriations Act, 2009 which was not signed by President Obama on March 11 th

7 III The revolutions in Mediterranean Africa and the new governments there have given rise to a foreseeable change of attitude towards the ICC in an area with very little sympathy for the Court. None of the countries where revolutions on this scale have taken place since last December are party to the ICC, including Syria and Yemen, which has not yet deposited the instrument of ratification. Some of them, such as Tunisia 12 and Libya have not even signed the Statute, whilst others such as Egypt and Morocco have bilateral immunity agreements with the USA. In a conference on April 19 th, Egypt s Minister of Foreign Affairs, Nabil Al-Araby, announced his country s intention to ratify all the international treatises related to human rights passed by the United Nations, as a sign of its commitment to international legality and its breakaway from the obstructionist policy of its predecessor 13. Just three weeks later, on May 7 th, the same Al-Araby notified his Sudanese counterpart of Egypt s intention to maintain and enter into bilateral immunity agreements pursuant to RS art. 98 with third countries before ratifying the RS, one of which countries was Sudan 14. Despite the shift in the standpoint of different states, there is a serious risk that the USA s misuse of this provision since 2002 will become the policy that communicates the posture of future party states towards the ICC, thereby discrediting ICC s operations and credibility. As has begun to become evident, cooperation is the cornerstone of the system upon which the fulfilment of its aims depends. This new scenario may be an ideal opportunity for Obama s administration to clearly define its stance and commitment to the International Criminal Court. 12 The interim government of Tunisia manifested its intention to ratify the RS on February 19 th For details see Accesion Developments_sp.pdf

8 For further information about ESADEgeo s Position Papers, please feel free to contact: Irene García García Researcher ESADE Center for Global Economy and Geopolitics Av. Pedralbes 60-62, Barcelona, Spain irene.garcia2@esade.edu Ext