Annex to LUS 92/17
Replies by Libya to the questions put by Judge SChwebel
Libya understands that the thrust of the three questions put by
Judge Schwebel is to obtain the views of the Parties on the question
whether the Montreal Convention (various Articles thereof, particularly
10 and 12) applies when the "persan" who has committed the offence and is
defined in Article 1 happens to be an agent of a State who has allegedly
acted "in pursuance of the purposes of that State". For Libya the answer
is in the affirmative in the three cases, the reasons being those set out
below.
Before it embarks on this demonstration, Libya is nevertheless
compelled to observe that the hypothetical case considered by
Judge Schwebel rests on a characterization of the facts, put forward by
the United Kingdom, which Libya categorically rejects, for which reason
the questions put are purely theoretical in nature.
Question No. 1
1. The answer to bath parts of Question No. 1 is "yes": on the one
hand the Convention is fully applicable to persans acting as agents of a
State and, on the other, there is a priori no reason why these persans
should not be prosecuted by the State of which they are the agents.
Commentary
First sub-question
2. Article 1 of the Montreal Convention, which determines the scope
of the Convention ratione personae, refers to "[a]ny persan" (Art. 1,
para. 1, first sentence, Art. 2, first sentence, .as well as Art. 6,
para. 3), without making any exception. This implies that "in accordance
with the ordinary meaning to be given to the terms of a treaty" (Vienna
Convention on the Law of Treaties of 1969, Art. 31, para. 1), the
Convention applies equally to private individuals and State officiais,
even if the latter act in their official capacity.
3. The Convention should therefore be applied to the case where the
offence has been committed by an official. There is no doubt that if the
Contracting Parties had wished to make an exception of this nature they
would have said so (infra, paras. 6-8). It is hardly likely that such
was their intention, for it is altogether possible to imagine that agents
of a State, a policeman, a gendarme, a member of the armed forces, a
watchman, but also other officiais, apparently peacefully inclined,
conceal a vocation to terrorism. - 2 -
4. This conclusion results, in the first place, from the text of the
Convention: "any person", taken in its ordinary meaning (supra,
para. 2), inasmuch as the travaux préparatoires are virtually silent in
. this regard. About the only relevant element that can be found in the
records of the Montreal diplomatie conference is a proposal by the
Czechoslovak delegation that in case the acts the Convention refers to
were to be committed
"by an employee of a State or airport authority or, for
example, by someone entrusted with the regulation of air
navigation safety (• •• ) the convention should provide that the
authority concerned must also bear responsibility for the act
or omi-ssion- in question" (!CAO, Int. Confer. on Air Law,
Montreal, Sept. 1971, doc. 9081-LC/AO-I, vol. 1, Minutes,
p. 46, para. 38).
The President of the Commission of the Whole then replied that:
"That point might perhaps be covered by means of an exclusion in
Article 4." (Ibid.).
In point of fact the question does not appear to have been the
subject of any debate, whether in the Commission of the Whole or in the
plenary; the exclusion to which the President referred is not contained
in Article 4 and nowhere else does the Convention provide that the
expression "any person" covers only pr:;i.vate individuals.
S. Nor do the travaux préparatoires of the 1970 Hague Convention
for the Suppression of Unlawful Seizure_ 9f ,A.irç.raft:, whJch uses tJ:le same
expression, namely, "any person" (Art. 1, Art. 6, para. 3), show that
this Convention would not apply to agents of the State. On the contrary,
the expression air "piracy" was not accepted for the purpose of
designating the offence that the Convention refers to. To Colombia,
which had proposed this designation (!CAO, International Conference on
Airlaw, The Hague, Dec. 1970, Doc. 8979-LC/165-1, Vol. I, Minutes, p. 37,
para. 3), the United Kingdom responded that "use of the term 'piracy'
could cause confusion wih the term 'piracy jure gentium'" (ibid.,
p. 38, para. 7; cf. also the statements in opposition by Yugoslavia and
India, ibid., pp. 38-39, paras. 9 and 17; cf. also G. Guillaume, "La
Convention de La Haye du 16 décembre 1970, poiur la répression de la
capture illicite d'aéronefs", Annuaire français de droit international,
1970, p. 39).
It appears from this that equally with respect to this Convention
the intention was not to limit the offence covered to acts committed by
priva te individuals, since the priva te· charàcter of piracy is one of the·
constituent elements of the offence (see Vienna Convention on the High
Seas of 19 April 1958, Art. 15, para. 1; Montego Bay Convention of
10 December 1982 on the Law of the Sea, Art. lOl.(a)).
6. A far stronger argument in support of the view that the
expression "any person" applies to both private individuals and agents of
a State is the fact that each time States have wished to limit the
scope of a convention on international criminal matters to certain
categories of persans they did not fail to so specify. Thus, as has
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just been noted, piracy is expressly limited to acts "committed for
private ends by the crew or the passengers of a private ship or a
private aircraft ••• " (emphasis added) (1958 Geneva Convention,
Art. 15, para. 1, and Montego Bay Convention, Art. 101 (a)).
Similarly, the 1989 Convention against the Recruitment, Use,
Financing and Training of Mercenaries, of 4 December 1989, defines the
mercenary in such a way as to cover private individua1s, that is,
"any person who
(a)
(b)
(c)
(d) is not a member of the armed forces of a party to the
conf li ct; and
(e) has not been sent by a State which is not a party to
the conflict on official duty as a member of its armed
forces".
Another case in point is the United Nations Convention of
10 December 1984 against Torture and other Cruel, Inhuman or Degrading
Treatmerit, which 1imits its scope ratione personae to agents of a State
and persons de facto acting for a State. Acts of torture committed by
private individuals are not covered by the Convention. Article 1,
paragraph 1, of the Convention mentions, for purposes of the Convention,
only pain or suffering
"inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capaci ty".
7. It follows, a contrario, that in the instruments aiming to
suppress international terrorism, such as the 1970 Hague Convention, the
1971 Montreal Convention, the New York Convention of 1973 (Offences
against Internationally Protected ·Persons) and 1979 (Taking of Hostages),
the 1980 Vienna Convention (Physical Protection of Nuclear Substances),
the 1988 Rome Convention (Safety of Maritime Navigation), the expressions
"any person" or "anyone" shou1d be understood to refer, in accordance, it
may be added, with their ordinary and primary meaning, to both private
individuals and persons acting de jure or de facto on beha1f of a
State.
8. This view is confirmed by the travaux préparatoires of the
United Nations Convention of 17 December 1979 against the Taking of
Hostages and the IMOConvention of 10 March 1988 for the Suppression of
Unlawfu1 Acts against the Safety of Maritime Navigation. In the case of
the former the Federal Republic of Germany stated that Article 1 of the
Convention ("any person who seizes or detains ••• another person
commits the offence of taking of hostages ••• ")
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"covered the case of a person who, acting on behalf of a public
institution or a State, committed an offence within the terms
of this convention" (S. Shubber, "The International Convention
against the Taking of Hostages", BYBIL, 1981, p. 212).
In the case of the latter Convention, the delegation of Kuwait
proposed the inclusion of a provision to the effect that Article 3 of the
Convention (which defines the offences covered) was to apply to the
offences committed by a persan acting on behalf of a government. Even
though the participants endorsed the idea that the Convention should
apply "to all types of international maritime terrorism, regardless of
who the offender may be", the proposa! by Kuwait was nevertheless
rejected inasmuch as
"it was felt that such an inclusion was not necessary as
Article 3 applies to 'any person' and therefore does not regard
status as a defence" (S.'A. Williams, "International Law and
Terrorism: Age-Old Problems,· Different Targets", RCADI,
1988, p. 108; of the same view is D. Momtaz, "La Convention
pour la répression d'actes illicites contre la sécurité de la
navigation maritime", Annuaire français de droit
international, 1988, p. 595).
Second sub-question
9. If the Montreal Convention applies to the agents of a State who
have committed an act contemplated by the Convention, it follows that
that State must prosecute those persons if it does not e:x:_t:: :P.emd,.n ::e
accordance with Article 7 of the Convention. The fact that the persons
are agents of a State does not stand in the way of the application of the
Convention. The whole of the system that has been built up for the
prevention of war crimes and acts of genocide operates on the basis of
the same principle. If the armed forces of a State commit war crimes the
primary duty of that State is to punish those crimes. Thus
Article 49 (I), 50 (II), 129 (III) and 146 (IV), common to the
four Geneva Conventions of 12 August 1949, imposes on each of the High
Contracting Parties
"the obligation to search for persans alleged to have
committed, or to have ordered to be committed, such grave
breaches, and shall bring such persans, regardless of their
nationality, before its own courts. It may also, if it
prefers, and in accordance with the provisions of its own
legislation, hand such persans over for trial to another High
Contracting Party concerned •• ·." ·(Emphasis ·added.) (See also
the First Additional Protocol of 8 June 1977 to the Geneva
Conventions of 1949, arts. 85-87.)
Even though we are dealing here with offences committed by agents of
a State in the exercise of their functions, that State must ensure the
punishment of these acts, even if the crimes are aommitted on superior
orders. If the State fails to take such action, it incurs
responsibility for the failure, a responsibility distinct from the one
1747f - 5 -
it has already incurred by reason of the war crime committed by the
member of its armed forces (cf. the Regulations annexed to the Fourth
Hague Convention of 18 October 1909, Art. 3, and First Additional
Protocol of 1977, Art. 91).
10. Similarly, if acts of genocide are committed by the authorities
of a State in its own territory, it is nevertheless the case that in
accordance with Article 6 of the Convention for the Prevention and
Punishment of the Crime of Genocide the persons that are presumed to have
perpetrated the acts
"shall-be tried by a competent tribunal of the State in the
territory of which the act was committed, or by such
international penal tribunal as ••• "
One~could also imagine similar cases in the area of drug trafficking
for the purpose of generating revenue for the State.
11. In the sphere of State responsibility, analogous situations are
found where the exhaustion of the local remedies makes it possible to
deal with the acts of officials who have acted on superior orders
contrary to international law. It is only after the remedies have been
exhausted that, if they are not effective, the State concerned may be
held responsible under international law (see draft Articles on State
responsibility, Article 22, 1977 Yearbook of the International Law
Commission, Vol. II, pp. 30 et seq.; for the difference between the
persona! criminal responsibility of the suspects and a hypothetical
responsibility of the State of which they are nationale, cf. the
statement by Professor Salmon in CR 92/2, trans!., pp. 45-50).
12. The conventions on international criminal law, except as
otherwise provided, therefore oblige the State to prevent acts committed
by its own organs.
Moreover, this is the meaning of the resolutions adopted by the
United Nations General Assembly in the sphere of international
terrorism. Hence, resolution 40/61 of 9 December 1985
"7. Urges all States not to allow any circumstances to
obstruct the application of appropriate law enforcement
measures provided for in the relevant conventions to which they
are party to persons who commit acts of international terrorism
covered by those conventions." ·(Emphasis added.) (See, in a
similar vein, res. 46/51 of 9 December 1991, para. 4, h.)
Naturally, if the State fails to take such preventive action, it is
violating the relevant convention and incurs international responsibility.
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Questions 2 and 3
1. For the same reasons, the replies to these questions are
affirmative: since the Montreal Convention envisages both acts committed
by individuals and acts committed by persans acting on behalf of a State,
the Convention applies in each of its provisions to the acts committed by
these persans.
2. In general terms, it must be remembered that the violation of a
convention by a State clearly does not rule out the applicability of the
convention to the State, otherwise that would lead to the disintegration
of the very-basis of the rule of law: ·it would be enough for a subject
of law no longer to apply the rule which binds him to render this rule no
longer applicable!
Reply by Libya to the question posed by Judge El-Kosheri
There is no denying that, under Article 41, paragraph 1, of the
Statute:
"1. The Court shall have the power to indicate, if it
considers that circumstances so require, any provisional
measures which ought to be taken to preserve the respective
rights of either party."
Further, Article 75 of the Rules provides in paragraph 2:
""When a request for provisional measures has been made,
the Court may indicate measures that are in whole or in part
other than those requested, or that ought to be taken or
complied with by the party which has itself made the request."
Libya, for its part, would not abject to the exercise by the Court
of a power conferred upon it by its Statute, when the Court considers
that circumstances so demand. It has itself referred to this power of
the Court through its counsel (Prof. Brownlie, CR 92/2, p. 27;
Prof. Suy, CR 92/5, pp. 50-51).
1747f
Answers by the Libyan Arab Jamahiriya to the questions put by Members of the Court