But on 26 February 2011 the
Security Council voted unanimously, in Resolution 1970, to refer
“to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;” 
Amongst those states who voted for this referral were 5 states – China, India, Lebanon, Russia and the US – who are not parties to the ICC and don’t accept its jurisdiction. This is blatant hypocrisy.
Writing in the Irish Times on 12
March 2011 about
As a result of this referral, the ICC charged the President of Sudan, Omar Hassan al-Bashir, with genocide and two other Sudanese nationals with lesser charges. None of them has been taken into custody or tried.
How were these referrals possible? The answer lies in Article 13(b) of the ICC statute (aka the Rome Statute), under which the ICC may exercise jurisdiction in respect of genocide, war crimes and crimes against humanity if:
“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;” 
So, the ICC is not an independent
judicial body, the jurisdiction of which states can choose to reject, as the
Of course, this cannot happen to
veto-wielding members of the Security Council, who have chosen not to become a
party to the Statute – since they can wield their veto to block any attempt by
the Security Council to extend the ICC’s jurisdiction to their territory.
And neither will
Protecting own nationals
The ICC has jurisdiction in respect of genocide, war crimes and crimes against humanity, committed in the territories of states that are party to the Statute, or by nationals of states that are party to the Statute. However, the primary duty for prosecuting these crimes lies with the state in which they were committed – and the ICC only acquires jurisdiction to prosecute them if the state fails to prosecute them. In principle, the ICC can prosecute any individual responsible for these crimes, regardless of his/her civilian or military status or official position.
This means that, in theory, a
national of a state that is not party to the Statute, for example, a
Because of this, Resolution 1970
includes a paragraph exempting nationals from states not party to the ICC, including
US nationals, from the jurisdiction of the ICC for acts committed in
“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 hypocrisy surrounding this is staggering: states that are not party to the ICC support the referral of matters occurring in the territory of one of their number to the ICC, but exclude their own nationals from the impact of that referral.
Article 98 agreements
Since the ICC came into operation
in 2002, the
To prevent a state acceding to such a request, the
“The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.” 
Starting in 2002, the
With some exemptions, states that
are parties to the ICC, cannot receive military aid from the
Section 2007(d) exempts NATO
members, other major non-NATO allies (including
But Section 2007(c) allows the President to waive the prohibition of military assistance if an Article 98 agreement exists. It says:
“The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the appropriate congressional committees that such country has entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal court from proceeding against United States personnel present in such country.” 
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Such are the lengths that the