The Libya Question — Comments

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Comment on the Libya Question: “Should Saif al-Islam Gaddafi be tried by the National Transitional Council of Libya or by the International Criminal Court?”

The controversy of where Saif al-Islam Gaddafi will be tried could be critical in developing the ICC’s admissibility policy. In my opinion, the ICC should allow Libya to conduct a national prosecution. The ICC is, after all, a court of last resort, and aims to complement national jurisdictions when possible. In this case, Libya has a clear interest in trying Gaddafi on domestic soil. Unless the ICC can articulate a clear and very convincing argument as to why Libya is completely unable to conduct a fair trial, the Court should defer to the principle of positive complementarity.

This is not to say that the ICC need be entirely hands-off. In perhaps a more indirect way, the ICC’s deferral to Libyan courts can pressure them to conduct a fair trial. In allowing a Libyan trial, the ICC will not be washing its hands of the situation; rather, it can monitor the impartiality of the trial and the “ability” under Article 17 of the Libyan justice system. Several articles of the Rome Statute allow the ICC to review the impartiality of a trial either during it or after its completion.1 For instance, Article 18(3) states that:

[t]he Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.

Therefore, the ICC may defer to Libyan proceedings, conditioned in part upon the Libyan trial being conducted impartially.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Rome Statute, Article 17, 18(3), and 20(3)(b).

On 26 February 2011, the United Nations Security Council (UNSC) referred the situation in Libya to the Prosecutor of the ICC. The UNSC at the same time ordered “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.” In order to answer the questions posed, it is necessary to be established whether the UNSC intended to bind Libya to the ICC’s rules on admissibility when it referred the situation to the ICC; particularly the authority of the Court to determine the admissibility and then proceed with a prosecution when it determines the case is admissible. If the answer is yes, then the ICC’s framework is the proper legal regime to govern the issue of where the trial should be conducted.

The admissibility of a case after the issuance of an arrest warrant is governed by the relevant provisions of the Rome Statute (Articles 17, 19) giving the chambers the authority to decide the issue. Libya would be obliged to hand S. Gaddafi over to the Court for trial if so ordered by virtue of its UNSC imposed obligation to cooperate. Reading the Rome Statute and the relevant UNSC resolution together demonstrates the fact that handing a suspect over to the Court is “cooperation”. Article 89 dealing with the surrender of suspects to the Court is found in Part 9 of the Statute titled “International Cooperation and Judicial Assistance.” Surrender is therefore an act of cooperation. The UNSC would have been aware of this when it ordered Libya to “cooperate fully”. The ICC, particularly the Pre-Trial Chamber in this case, is therefore the proper place for both the decision on admissibility and the determination of the proper authority to conduct the trial.

Libya would be unlikely to succeed on an admissibility challenge as things currently stand. Article 17 sets out that a case will be inadmissible, inter alia, where a State that has jurisdiction is investigating the same case. The jurisprudence of the Court interprets this to mean that at the stage of the proceedings where there is already a concrete case, the national proceedings “must cover the same individual and substantially the same conduct” to render the case inadmissible. Given the fact that the new regime in Libya has not yet set up a functioning judicial system, not to speak of police and prosecution services, means that it is unlikely that the new government will be able to demonstrate an investigation that is far enough along to satisfy this standard. The best Libya could do is to demonstrate an intent to begin an investigation. However, this is insufficient to satisfy the legal standard of the Court on admissibility challenges at this stage of the proceedings.

The answers to the questions then, as I see them, are:

(1) Should the TNC or the ICC try S. Gaddafi? As a legal matter, the answer appears to be that the trial should be before the ICC. However, there is no legal reason why the trial could not be held in Libya, pursuant to Articles 3(3), 62, if the security of the trial can be assured.
(2) Who has the legal authority to decide on the place of trial? At this stage it is the ICC. Admissibility (resulting in who tries S. Gaddafi) in this context deals with the division of labor between the Court and Libya. The Court is bound to apply its own rules and therefore is the necessary legal framework within which the Court must decide the issue. Libya will be bound to cooperate with the decision of the Court pursuant to the relevant UNSC resolutions depriving it of legal authority to decide otherwise.
(3) What process should be used to decide who should try S. Gaddafi? Before the issuance of an arrest warrant the Office of the Prosecutor could have made this decision internally by not requesting the arrest warrant or deferring an investigation pursuant to Article 18. Now that an arrest warrant has been issued, it appears that the competent organ of the Court is the Pre-Trial Chamber.
(4) Should the ICC address the ability of the Libyan system to give S. Gaddafi a fair trial? No. The legal standard for admissibility at this stage does not include willingness or inability (which implicate fair trial concerns). Such a review should not be conducted ex ante before any national trial or investigation has begun or has taken place. The Court should not engage in fortune telling of what a potential Libyan investigation and trial (or any other State) would look like. It should only evaluate the sufficiency of present or past proceedings.

I would just like to note that this is a legal analysis that has nothing to do with the likelihood that S. Gaddafi will be handed over to the ICC. It also does not take into account the potential damage to the standing of the ICC if it were to engage in a confrontation, and lose, with Libya over custody of S. Gaddafi. These concerns, in my opinion, are not relevant to the legal question given the stage of the proceedings before the ICC and the mandatory language in the Rome Statute. They are extremely important all the same.

The ICC Should Use the Trial of Saif Al Islam Gaddafi to Pressure Libya to Create Competent Courts

The ICC operates under a principle of complementarity which requires that the ICC defer to competent, national criminal proceedings against an alleged criminal violator in his home state. The Court may step in and overtake criminal proceedings in national courts, however, when the national courts are “unwilling or unable” to prosecute.1 It is unclear what is meant by “unwilling or unable” although on its face the law does not suggest that a bias either for or against the defendant is acceptable. I believe the Statute incorporates instances not only of sham trials seeking to exonerate likely violators, but also trials which lack fundamental elements of fairness even for a reprehensible defendant.

The Rome Statute further states that proceedings which are “not being conducted independently or impartially” or in a manner “inconsistent with an intent to bring the person concerned to justice” might suggest that national courts are “unwilling or unable” to prosecute.2 An intent to bring the person concerned to justice requires that justice be done—justice requires not only convictions, but also the opportunity to vigorously defend those who may be innocent. Therefore, I argue that the ICC is empowered to interrupt national proceedings that lack fundamental elements of fairness or which slant too far in favor of the prosecution.

Although the ICC may not desire to interrupt the trial of Saif Al Islam Gaddafi as it seeks to remain a court of last resort, the Court may use the threat of interruption to encourage Libya to create a competent court system. By ensuring that the new Libya adheres to fundamental elements of fairness in the trial of one of its worst violators, the ICC will encourage a vigorous system of courts to prosecute mid—and low-level alleged violators as well. By ensuring fair courts, the ICC will serve its mission of creating peace by offering an alternative to vicious retribution and creating a reliable process by which the numerous violators from Libya’s struggle for freedom may be held to account for their crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Rome Statute, Article 17(1)(a).

  2. 2.

    Id., Article 17(2)©.

The ICC should allow Libya to try Saif al-Islam Gaddafi. It is unlikely that Libya is “unwilling or unable” to carry out the prosecution under Article 17 of the Rome Statute. The ICC needs to adhere to its policy and mandate of positive complementarity. The advantage of trying Saif at the ICC is that the ICC’s court system offers a higher level of sophistication. That is, both counsel and judges boast training and experience in dealing with higher level crimes. They also operate under the Rome Statute, a mandate which governs their actions and that has been carefully crafted to administer justice under international standards.

The question is whether the Libyan courts are fit to do this job. According to Prosecutor Luis Moreno-Ocampo, Libyan courts, although formerly not in a position to do so, are now ready and able to carry out the current task. This will certainly be a difficult process, as Libya’s justice system seems to fall short of international standards at the moment while institutions are being reconstructed. However, it may be the case that the transitional government will take more precaution and effort in administering justice after the learning a lesson from the manner in which the Libyans handled Muammar al-Gaddafi’s capture. Allowing Libya to carry out Saif’s trial is essential to evaluating the current status of the Libyan court system, as its capabilities are not entirely clear.

The ICC is likely to receive a high level of criticism if it were to try Saif and usurp the local courts. Consequently, this would diminish the ICC’s credibility and render it more taxing for new States to adopt the Rome treaty and to administer justice for future crimes. It would also hinder current States Parties, particularly African States Parties, from abiding by its mandate, as we see occurring with African States Parties in executing the arrest warrant for Omar al-Bashir. It is also questionable whether Libya would agree to hand Saif over to the ICC. Libya’s Justice Minister, Mohammad al-Allagui, has indicated that Libya in fact will not release him to the ICC. It seems that the ICC is almost cornered into allowing Libyan courts to try Saif. Ocampo has indicated that the ICC will provide support in carrying out the prosecution. Allagui has told al-Jazeera that Libyans would welcome international monitors over Saif’s trial.

Nevertheless, the effect of this current situation on the ICC is a positive contribution to the ICC’s ability to function. Although the ICC may not carry out the prosecution, one of its main deficiencies, executing arrest warrants, has seen progress. It is open to debate to what extent the ICC’s issuance of Saif al-Islam’s arrest warrant impacted his actual capture.

I have read a few comments on the issue and an idea came to my mind on a possible challenge by Libya on the ICC jurisdiction. I am not sure of its relevancy. I have started studying International Criminal Law only recently so I might have missed a few elements.

I agree with the considerations on the article 17 that would declare Libya unable, at the moment, to prosecute thoroughly Saif al-Islam Khadafi.
However, I was wondering if there is a possibility to challenge the Security Council referral upstream. I haven’t been able to find such provisions on the Rome Statute except the article 19 but it only refers to the article 17. An argument against the prosecution led by the ICC could be that the Security Council referral was inconsistent with the International Law and therefore should be cancelled.

There is indeed an inconsistence with the resolution 1970 itself which recalls the responsibility to protect principle. The R2P concept provides, inter alia, for means for the population to prevent the four most serious crimes and to rebuild. Rebuilding means also implementing justice against the perpetrators of these crimes. Consequently, by referring to the ICC, the Security Council may prevent from a complete implementation of the resolution 1970’s perspectives.

Furthermore, the Security Council referral in the context of uprising in Libya could be seen as acting against the principles and purposes of the UN Charter. This uprising gave a chance for the Libyan people to choose its own leaders and to organize the institutions afterward. This is what implies the self-determination concept of the article 1 of the UN Charter. Considering that the first aim of this uprising was to dismiss and potentially try the leaders for the crimes perpetrated, the Security Council is then impeding the right to self-determination. The Libyan people should have the chance to bring the uprising to its end.

Finally, the referral to the ICC to prosecute a national of a non-member state could give a feeling of impunity to other persecutors from uprising countries, not nationals of a state-party neither. Indeed, it means that only political reasons led to the prosecution of the former. The perpetrators have not been prosecuted by their population for the crimes they did in their country. On the contrary they have been prosecuted by the ICC on referral of the Security Council (highly politicized institution) because the case was involving political issues concerning the permanent members. In my view, this picture of the international criminal justice goes against one principle of the Rome Statute which is to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. It questions also the positive complementarity, and the role of the ICC to assist the national legal system to implement the international criminal law.

This is a critical question and strikes at the heart of the Rome Statute--Complementarity and State Sovereignty.
The preamble to the ICC statute reads: "Affirming...their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, ....
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those for international crimes,...

This takes us to Article 17. The NTC has expressed its desire to prosecute Saif al-Islam Gaddafi. To wit, this reduces to the question as to whether the NTC is "unable genuinely" to carry out the investigation and prosecution. The determination of whether the NTC is unable genuinely to investigate and prosecute Gaddafi is determined by the OTP.

Is it not error to assume the premise as true, that the OTP is the appropriate body to carry out the determination of functionality of a State's judiciary? There should be little problem giving primacy to the ICC where there is no proper functioning judiciary, however where there is a functioning judiciary I find it problematic that that OTP is the ultimate decision maker as to the proprietary of proper judicial function.

By way of example, the NTC may favor the death penalty whereas the death penalty is precluded by the ICC. Ultimately, this may translate into the assertion of ethnocentric western values over the people who have been victims of a dictatorship propped up by the very countries that will now question the ability of the State to prosecute a fair trial. This will ultimately lead to an evisceration of restorative justice.

Restorative justice is inextricably linked to article 68 of the ICC Statute. From the experiences in the various ad hoc tribunals, specifically the ICTY, it cannot be gainsaid that trial of Gaddafi in The Hague will leave many Libyans feeling that justice has not been served. Assuming he is found guilty many will consider Gaddafi to be living in "Club Fed".

Thus based on the primacy on State Sovereignty and complementarity to the extent a functioning judiciary exists in Libya, Gaddafi should be tried there. To the extent that the Libyan judiciary is seen as inadequate, legal representatives from the OAU in conjunction with the OTP should assist is seeing that Gaddafi is given a fair trial.

Simply said, to fully provide restorative justice to the Libyan people who have been victims of CAH Saif al-islam must be tried by the TNC in Libya.