Brief Query

[Carinthium]

Is it true that the ICC tried to prosecute former Colonel Gaddafi and some of the elites of his reigme despite Libya having never signed Libya having never signed up to the ICC? If so, then what the hell is their legal rationale?

[Shadow6]

The UN Security Council referred the situation to the ICC in Resolution 1970 (further reading: Wikipedia and the ICC). This is covered under article 13 of the Rome Statute, which specifies that the ICC only has jurisdiction if the crime occur within or by a national of a member state or if the UN Security Council refers it to them, as in this case, and the UN Charter itself, which states that member states must act in accordance with the UN Security Council.

Here is Article 13 of the Rome Statute:

Article 13
Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

The resolution was made on the 26 Feburary, and the ICC issued warrants for the arrest of Gaddafi and one of his sons, as well as Abdullah Al-Senussi, head of military intelligence, on the 27 June. Article 16 would seem to imply this might be illegal - I don't know what 'investigation' or 'prosecution' are technically defined as.

Article 16
Deferral of investigation or prosecution

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.