but there is one issue that has not been discussed and that is the legality of the referral mechanism as a whole.
As the readers of this blog might know, I remain convinced that the power given to the Security Council, by a treaty other than the UN Charter to effectively make that treaty binding on a non-State party is contrary to international law. I discussed this issue before in relation to the Darfur referral (here and here). You could tell me that I should let bygones be bygones, that the system exists and that I should just live with it. But, I realized I couldn't do so when reading the debate over at Opinio Juris on the "legality" of the following paragraph of the Resolution:
6. 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.The debate turned around the question of whether this limitation was "lawful" or of "dubious legality" and "ultra vires". And then I asked myself a very simple question? "ultra vires" and "unlawful" in relation to what law or power? It cannot be the ICC Statute, because the UN Security Council is not bound by the ICC Statute, it is only bound by its constitutive treaty, i.e. the UN Charter. And it cannot be the UN Charter, because there is famously no boundaries to the use of Chapter VII. So the UN Security Council can say what it wants and the whole debate actually shows the legal absurdity of the whole UNSC referral system.
Which brings me back to my initial point, the legality under international law of the mechanism as a whole. I cannot see in what reading of the general rules of the international law, the Security Council can be empowered to make a treaty binding on a State without its consent. Even more so if this power does not arise from the UN Charter itself.
If I do play along with the existing system for one minute, I still don't see the problem with paragraph 6 from the ICC's perspective. Kevin John Heller put forward a hypothetical scenario in this respect:
But there are no formal requirements for the content of a referral in the Statute other than the fact that it must be done under Chapter VII. More generally, referrals, whether from States or the UNSC, are not "binding" and don't have "legal force". They can say what they want, and therefore no issues of "legality" actually arise. As long as a "situation" is referred, as defined by the Statute, it only triggers the Prosecutor to move along, and ultimately, his prosecutorial discretion will prevail and any case that arise will be evaluated within the ICC framework based on its jurisdictional criteria. The Prosecutor has said so much in his policy paper on preliminary examinations, where he points out, for example, that he is not bound by a list of possible indictees that a UN report or a truth commission will have set up, or limited to prosecuting one side of a conflict (although this is factually what he has done in Uganda, but that is a different issue). Bottom line, the ICC is not bound by any frivolous extra bits in a referral. Once a State or the UN Security Council has referred a situation, limiting prosecution to blonds with green glasses, or blue men from Mars is not unlawful. It's just irrelevant.
What would happen in the following, obviously fanciful, scenario? Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him. The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime. The ICC prosecutes him, concluding that paragraph 6 has no legal force. If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?
To those who would argue that SC referrals are different that other referrals because they concern non-State parties to the ICC, I would answer that is exactly why you should have refrained from putting it in the Statute in the first place. Once it is in there, the same rules apply in my opinion.
UPDATE: I've continued debating this in the comments section of Opinio Juris, which compels me to make Three extra points here. 1) There is no statutory definition of a "situation" and the case law is quite vague on this issue, so I'm surprised at the over-reliance on this term in the analysis, when the term itself is so empty. 2) more generally, I insist that this is not an issue of legality, in the absence of any "legal nature" of the referral and conditions of its "legality". Referrals are essentially political triggers that don't need to conform to any legal guidelines and previous practice shows that. The Uganda referral mentioned a vaguely defined region ('northen Uganda') and limited the crimes to those committed by the LRA. 3) linked to the previous one, there are other ways of dealing with the issue that the "legality/illegality" approach. To take Kevin's above quoted hypothetical, a Libyan defendant who would contest the referral would just receive the answer that he fits within the limits of the referral. It is only if a UN peacekeeper from the US (for example) is prosecuted that he might claim the protection of the resolution, with the Court considering that the paragraph is either "operable"n or "inoperable".
In conclusion, save for contesting the mechanism as a whole, I think that there is nothing wrong with the SC referral as it stands.