Libya and the ICJ: Clipping the Security Council’s Wings
by David Ott (*), Middle East International, 13 March 1998
“Neither a victory nor a defeat” was British Foreign Secretary Robin Cook’s spin on the 27 February decision of the International Court of Justice to hear Libya’s challenge to UN Security Council resolutions on the Lockerbie case. But in fact, by agreeing to consider the Council’s imposition of sanctions on Libya for refusing to comply with a Council order to extradite two Libyans accused of involvement in the bombing, the ICJ has inflicted a serious setback to British and American ambitions to aggrandise the Council and its decrees.
The debate about the Security Council’s authority acquired urgency in 1990 when the Iraqi invasion of Kuwait, coinciding with the collapse of the Soviet Union, offered Britain and the United States an opportunity to mobilise the Council to enforce the “new world order” under their leadership and without fear of a Russian veto.
The British and American argument hinges on the claim that the UN Charter, in Chapter VII, gives the Security Council unchallengeable authority to “determine the existence of any threat to peace, breach of the peace or act of aggression” and to order economic sanctions or the use of force as it sees fit “to maintain or restore international peace and security.” This is said to impose the obligation of unquestioning and absolute obedience on any UN member targeted by the Council under Chapter VII, with no right to appeal – even if the Council abuses its power, undermines general international law or violates natural justice.
But in the Lockerbie case Libya relies on long-established rules of international law. For over a century, extradition has been regarded as optional, not mandatory, and entirely dependent on the existence of appropriate treaties between the states concerned. Libya is far from alone in reserving the right not to conclude such treaties or extradite its own citizens.
It has been argued that its duties in the Lockerbie case arise solely from the 1971 Montreal Convention on protecting civil aviation. That treaty (which binds Britain and the US also) obliges each party to do one of two things: either extradite, if it already has an extradition treaty with the state requesting extradition; or, if it has no such treaty, investigate the case and, if the evidence warrants, try the suspect according to its own law.
Libya has claimed all along that it has attempted to implement this second alternative but that Britain and the US have refused, contrary to their obligations under the Montreal Convention, to help Libya’s investigation by turning over to it all their evidence against the two men.
But flushed with their success in coopting the Security Council in their battle with Iraq, Britain and the US in 1992 tried the same approach with Libya. In January 1992 the Security Council was persuaded to adopt Resolution 731, which “urged” Libya to provide a “full and effective response” to British and American extradition requests. This implied, without offering any convincing justification, that Libya had a duty to obey, although the resolution’s calculated vagueness left room for endless arguments about the nature and extent of that obligation.
Such ambiguities almost invite the complaining states to shift the goalposts whenever its suits them, so that compliance can never be measured objectively but becomes entirely a matter of whether those states choose to consider themselves satisfied. If they have strong political motives for remaining implacable, they can ensure that the target of their hostility is never able to extract itself from the tentacles of the resolution’s language.
In the case of Iraq since 1991, ambiguous or open-ended Security Council resolutions have prolonged uncertainty and been taken by the US as justification for threatening to act as enforcer of the Council’s decrees without any specific authorisation. The Council’s latest resolution, on 2 March, with its threat of “severest consequences”, repeats the pattern. President Clinton claims it confers the right to use force if America objects to Iraq’s dealings with UN arms inspectors. UN Secretary-General Annan, on the other hand, insists that such action must be discussed by the Council and that, if US leaders think otherwise, they “must know something I don’t”.
By allowing such situations to arise, the Council risks transferring its ultimate authority under the UN Charter into the hands of member states pursuing their own agendas.