Die Überweisung der Lage in Libyen an den Internationalen Strafgerichtshof durch den Sicherheitsrat der Vereinten Nationen – zugleich ein Beitrag zur Völkerstrafrechtspraxis des Sicherheitsrates

The United Nations Security Council referred the situation in Libya since 15 February 2011 to the International Criminal Court (ICC). In order to assess whether or not the ICC is competent to exercise criminal authority over crimes committed in Libya this paper addresses the different legal problems that arise out of the referral. Measured against the Charter of the United Nations, it is regrettable that the Security Council did not explicitly determine a threat to the peace. Resolution 1970 (2011) proves to be lawful under the Charter, only because the Council implicitly determined such a threat and because such a threat exists. Nevertheless, for reasons of legal security the Security Council should in the future determine a threat to the peace explicitly. Measured against the ICC-Statute the resolution poses several legal problems. First, because Libya is not a state party to the ICC, alleged crimes committed before the referral can only be measured against customary criminal law. This is due to the principle of nullum crimen sine lege. Only after the time of referral the ICC may base its investigations and indictments on the crimes enlisted in art. 5–8 ICC-Statute. This is based on a reading of Chapter VII of the Charter according to which the Security Council has the power to enact substantial criminal law with directly binding effects on individuals. Second, the Security Council stripped all Libyan officials from their respective immunity. Therefore, the first suspects identified by the ICC, namely Muammar al-Gaddafi and his son Saif-al-Islam, can be investigated and subsequently prosecuted. Third, the intense fighting between the Libyan government and the rebels must be classified as a non-international armed conflict, making International Humanitarian law applicable. The subsequent fighting of international forces against the Libyan government must be classified as an international armed conflict, also making International Humanitarian law applicable. In such situations, war crimes may be committed. Surprisingly the ICC is not investigating any alleged war crimes, but crimes against humanity, even though the Security Council could not and did not limit the ICC's powers to crimes against humanity.