Recent US airstrikes against ISIL targets in Libya raise an intriguing question: does the International Criminal Court (ICC) have jurisdiction to investigate and prosecute US actions there? Ultimately it may depend on whether the United States can safely rely on an exemption from the court’s jurisdiction that was included in the UN Security Security Council Resolution granting the ICC authority in Libya.

In February 2011, UN Security Council Resolution 1970 referred the situation in Libya to the ICC. Although the UNSC referral was motivated by the violent crackdown on civilian protesters by Gadaffi government forces, the grant of jurisdiction covered any ICC crimes (war crimes and crimes against humanity in this case) arising from the conflict. Resolution 1970 contained, however, an important jurisdictional carve-out for non-ICC States (aside from Libya itself), including of course the United States:

[N]ationals, 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 ….

Authorization for military force in Libya came a few weeks later with the adoption by the Security Council of Resolution 1973. It established a “no-fly zone” over Libya and authorized the use of force to protect civilians:

Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council.

NATO forces relied on this broad grant of authorization to attack Gadaffi forces, ultimately leading to Gaddafi’s capture and contributing to the overthrow of his government. Russian,  Chinese, and South African government officials complained that in achieving regime change, NATO forces exceeded the mandate granted by Resolution 1973.  But one legal commentator sympathetic to this complaint had to concede that while NATO forces may have violated the “spirit” of 1973, its actions were not “blatantly illegal” as NATO could argue “that protecting civilians required disabling Libyan ground forces and their leadership.” And a political science commentator doubted whether Russia, China, and South Africa were genuinely surprised by the actions NATO took following the Security Council vote.

Turning to the Court, the ICC has indicted two individuals in connection with crimes committed under the Gaddafi regime.  At the same time, it continues to assert jurisdiction over Libya on the theory that the crisis that occasioned the grant of authority in Resolution 1970 has not been resolved. In particular, in its last report to the UN Security Council on Libya, presented in May of this year, the ICC Prosecutor said that her office was especially concerned with allegations of crimes against civilians attributed to ISIL, which has been present in Libya since 2014. If the OTP presumes that the ICC can assert jurisdiction over ISIL actions in Libya, could the ICC likewise claim to have jurisdiction over the United State’s counter-ISIL operations? (For this post, we do not directly consider whether the ICC is correct in its assessment that hostilities between ISIL and government forces are part of the same “situation” contained in the Security Council referral. We leave that discussion to another day.)

The answer to whether the ICC would have jurisdiction depends, in crucial part, on how one interprets the jurisdictional carve-out for non-State parties in Resolution 1970. Remember that the carve-out applies only to “alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council.” (emphasis added).

Have the US counter-ISIL operations (e.g., Operation Odyssey Lightning) been established or authorized by the UN Security Council? The US has strong arguments that they have been. It could argue that the strikes continue to be authorized by Resolution 1973. Some prior authorizations of military force by the Security Council have contained narrower objectives – e.g. Resolutions 940 (Haiti) and 1101 (Albania) – or date limitations – e.g. Resolutions 1101 (Albania, 3 months) and 1088 (SFOR, 18 months). Resolution 1973’s authorization, however, is broad, “to take all necessary measures … to protect civilians and civilian populated areas under threat of attack,” and contains no time limitation.

The United States’s authority to conduct strikes against ISIL targets in Libya is further supported by UN Security Council Resolution 2259, adopted in December 2015. That Resolution

Urges Member States to swiftly assist the Government of National Accord in responding to threats to Libyan security and to actively support the new government in defeating ISIL, groups that have pledged allegiance to ISIL, Ansar Al Sharia, and all other individuals, groups, undertakings and entities associated with Al-Qaida operating in Libya, upon its request.

The United States could say that this language presumes the authorization of military actions against ISIL forces, and that the United States conducted strikes on ISIL targets only at the request of the Libyan government. One might anticipate a rebuttal to that position—namely, that the Security Council itself did not authorize the counter-ISIL operations, but only “urged” member States to provide support as authorized by the new Libyan government. The fact that these are both potentially plausible interpretations, suggests that the ICC would be treading in difficult territory to try to read the Security Council resolutions narrowly.

Finally, the United States would likely argue that the grant of jurisdiction to the ICC and the jurisdictional carve-out should presumptively run together, particularly since the carve-out was undoubtedly a condition of the United States supporting Resolution 1970 in the first place. To the extent that the ICC reads Resolution 1970 broadly as continuing to grant it jurisdiction in Libya, Resolutions 1970 and 1973 should also be read broadly to give continued force to the jurisdictional carve-out for non-State parties to the ICC.

These arguments presume, of course, that the ICC would recognize the validity of the jurisdictional carve-outs (a similar carve-out was included in Resolution 1593, referring Darfur to the ICC). Some have argued that they are inconsistent with the Rome Statute and should be disregarded by the ICC. To date, the ICC has not challenged these carve-outs, but has not, implicitly or explicitly, said it recognizes them either.

The risk that the ICC would take a stand against the carve-out in the context of the US counter-ISIL to date is probably close to zero. For one, there have been no allegations that the strikes have amounted to war crimes. What is more, Article 8 of the Rome Statute essentially instructs the Court to focus on war crimes that are “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” What makes the Libya situation different is that the ICC is already seized of the entire situation, and it is not unimaginable that the Prosecutor would take up a specific strike amidst other investigations. As a comparison, the Prosecutor has intimated that she is looking into the Kunduz hospital strike in Afghanistan, which is an ICC party and has been the subject of a preliminary examination by the OTP for several years now.

While one might argue that this is precisely the context when the ICC should announce that it does not recognize the carve-out—because it could do so but then find no violation, a kind of Marbury v. Madison moment for the ICC—elements of the Court to date has shown little inclination to provoke the ire of the United States.  In addition, the ICC would know that challenging these carve-outs would dramatically decrease the likelihood of future Security Council referrals to the Court. Some might see that as a good thing, including friends of the ICC who see such referrals as politicizing the work of the institution. ICC officials, however, are more likely to worry about the marginalization of the Court if Security Council referrals become impossible.

In sum, US policymakers might take note of the ICC’s assertion of a continuing role in Libya, but have little to fear, barring some unforeseen and significant change in events, that the Court will begin scrutinizing US actions there.