The Security Council and the Complementary Regime of the International Criminal Court: Lessons from Libya

Abstract

On February 26, 2011, in the wake of sweeping protest movements and resulting government-sponsored violence across the Arab world, the Security Council adopted Resolution 1970 referring the Situation in Libya to the Prosecutor of the International Criminal Court (ICC). This was only the second occasion that the Council had, in acting under its Chapter VII powers of the Charter of the United Nations, referred a situation to the Court pursuant to Article 13(b) of the Rome Statute. When, just two weeks later, the United Nations Security Council adopted Resolution 1973 creating the legal basis for military intervention in Libya, it appeared that the ICC was well placed to strike a powerful blow for international criminal law, justice, and the Libyan people. Unfortunately, this has not been the case. This article asks why — it finds that an impasse exists between the ICC and the Libyan National Transitional Council due to the doctrinal uncertainty as to the applicability of the principle of complementarity under Security Council referrals. Although complementarity has been described as the cornerstone of the ICC, questions persist as to whether the Security Council, as the body charged with the primary responsibility for the maintenance of international peace and security, can abrogate this principle and confer jurisdictional primacy upon the ICC. This article seeks to resolve this issue through a comprehensive analysis of the Rome Statute, the Charter of the United Nations and subsequent practice of the Office of the Prosecutor of the ICC. Finding that the Security Council must abide by the principle of complementarity, this article concludes by analyzing the consequences for Libya and for future Council referrals, proposing that an ICC trial in situ offers compelling benefits for this and similar cases involving states transitioning from despotism.

Keywords: international criminal law procedure, the Security Council, the International Criminal Court, complementarity, Libya, Gaddafi

JEL Classification: K33