Fun with Complementarity

There is SO MUCH international criminal law news right now, you guys. Case 002 opened at the Khmer Rouge Tribunal (more on that later), Bangladesh began a trial for atrocities committed during its independence fight, and George W. Bush and Tony Blair were found guilty of war crimes by a “Let’s Play Make Believe” tribunal in Malaysia.

But the biggest story is that Saif al-Islam Gaddafi and Abdullah al-Senussi, both the subject of ICC warrants on crimes against humanity charges, were captured in Libya this weekend. The Libyan authorities have expressed a very strong desire to try Saif themselves and a reluctance to hand him over to the ICC, so ICC Chief Prosecutor Luis Moreno-Ocampo headed down to Libya yesterday to talk things out.

As far as I can tell, it was at that point that every news media outlet in the world began misreporting the story. So, uh, note to Al Jazeera, The Guardian, MSNBC, Voice of America, and the rest of y’all: Moreno-Ocampo most certainly did not agree that the Libyans will try Saif. You know how I know this, despite my lack of a foreign correspondent on the ground in Tripoli? It’s because the Chief Prosecutor does not have the power to make that decision.

The new Libyan government is well within its rights to challenge the ICC’s jurisdiction if it wants to prosecute the crimes against humanity charges itself. And there’s a good chance they’d prevail on the challenge, given that the ICC’s jurisdiction is complementary, not universal. (This means that the court can only try cases where the relevant domestic judicial system is either “unwilling” or “unable” to prosecute.) However, the assessment of whether Libya is “able” to prosecute rests with the Pre-Trial Chamber of the ICC, not with the state itself, or with the Chief Prosecutor.

This particularly legal issue hasn’t been explored before* so the Libyan case will be an exciting (maybe just for me) opportunity to establish exactly how the ICC will handle inquiries into the ability of states to try mass atrocity cases. Specifically: Will the Pre-Trial Chamber defer to state preferences and call off ICC proceedings when states show a genuine desire to conduct trials themselves, or will it conduct an extensive analysis of judicial capacity?

I suspect the bizarre reports we’re getting that the ICC has “ruled” that the Libyans can try Saif stem from the fact that the Prosecutor has opted for the former course,** and will support Libya’s efforts to try the case. We’ll see whether the judges do likewise…

*Note: The ICC did slap down a challenge to its jurisdiction from Kenya earlier this year, but it was on the grounds that the Kenyan government wasn’t conducting an investigation or prosecution on charges similar to those in the ICC case, not that it didn’t have the capacity to do so.

**Possibly in recognition of the fact that if Libya flat out refuses to hand Saif over, there’s not much the ICC can do…

Kate Cronin-Furman

9 Comments

  1. So there is the ICC's official statement, with Ocampo saying: "The issue of where the trials will be held has to be resolved through consultations with the Court. In the end, the ICC judges will decide, there are legal standards which will have to be adhered to". Then, he arrived in Tripoli and started using lots of conditionals – which journalists are sometimes not so good at picking up on.

    One could argue that LMO is taking account of local political situation, and being kind about Libya. So, therefore, you guys could certainly try him here in Libya, [erm, leaving out "if you had a functioning court system that could satisfy the ICC pretrial chamber"]. So please hand him over and I'm sure the judges will send him and Senussi back later. Which becomes "Saif set to go on trial in Libya" in the media.

    For further discussion of the legal issues, can I recommend this blog posting by Alison Cole: http://blog.soros.org/2011/11/libya-and-the-icc-what-next/

    Jonathan Birchall, Communications, Open Society Justice Initiative

  2. Hey Jonathan, thanks for your comment and for the link to Alison's post – hadn't seen that yet!

  3. Great piece and big fan of the blog.

    Two thoughts on this subject.

    First, from what I understand now, Libya is under no obligation under the Rome Statute to hand Saif al-Islam or al-Senussi over (David Bosco just wrote on the subject).

    Check out Article 19:

    Pending a ruling by the Court, the Prosecutor may seek authority from the Court…(c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

    This would suggest that Moreno-Moreno-Ocampo can decide to make a request to the ICC judges to rule on the issue *without* Libya having to send Gaddafi to The Hague.

    Second, whether or not it is legal for Moreno-Ocampo to decide on the issue (and I agree with you, it is not), he did say the following:

    "Now as Libyans are decided to do justice, they could do justice and we'll help them to do it, so that is the system."

    He went on to add that "our judges have to be involved."

    In plain English and as a political statement, as Jonathan suggests, this means pretty much what it says: Libyans can serve justice and we, the ICC, will be involved.

    If you take this to be true, then the questions that arise are: 1. did Moreno-Ocampo over-step his legal boundaries? 2. were the remarks a political statement or do they reflect the legal opinion of the OTP? 3. will the OTP request that the ICC judges decide on where to try Saif and Senussi without having them transferred and 4. if the OTP does so, will they argue in favour of trying them in Libya?

    Very interesting days, indeed. I still support a justice-sharing agreement between the ICC and Libya (http://wp.me/p1n0fE-vx and http://wp.me/p1n0fE-kP). I would love to hear what the great (and funny!) minds at Wronging Rights think too.

  4. Hi Mark,

    Great points. You are correct that as a non-member state, Libya is not obligated under the Rome Statute to hand over Saif Gaddafi or al-Senussi. However, the Security Council resolution (1970) referring the case to the ICC directed Libya to cooperate with the court.

    I'm not sure I fully understood your question re: Art. 19, but the Pre-Trial Chamber can definitely rule on where the accused will be tried without them being shipped to the Hague first.

    As for LMO's remarks, I think he was just indicating how he thinks things should play out, not claiming to make a legal determination. It sounds like he's planning to assist Libya with their challenge to ICC jurisdiction.

    Definitely agree that some kind of joint international / domestic effort is probably the way forward here…

  5. Why is no one talking about the option of in situ proceedings? If the mainstream press is to be believed, the issue appears to be where gaddafi is tried, not who tries him. The ICC could just hold its trial in Libya (Rome Statute art. 3(3), yes I looked it up), this would satisfy the desire of Libyans to see justice served in their country (a large observer gallery would be useful), provide a functioning judicial mechanism to do so, and avoid vengeance papered over with perfunctory obiter dicta. The only drawback with this option is that it's expensive. "Expert commentators" (I saw one on the BBC) spewing crap about how the ICC can morph into a hybrid tribunal on the drop of a hat aren't deserving of the label.

  6. @Daniel – Great point. But while the issue has been largely ignored by the mainstream media, there have been a few people who have brought it up:

    David Kaye (http://nyti.ms/rpm0QA); Kevin Jon Heller (http://shar.es/otHPp) and Philippe Sands (http://gu.com/p/33gxk/tw)

    I have also written a few pieces since this past summer on the issue as well (here http://wp.me/p1n0fE-kP, here http://wp.me/p1n0fE-vx, and here http://wp.me/p1n0fE-w0)

    There now seems to be a dividing line about the extent to which this would be a trial 'in situ' or whether it is possible for some sort of 'justice-sharing' agreement where the ICC and Libya form some type of hybrid institution.

  7. In situ proceedings are definitely an option here and may be a viable compromise. But I'm not sure it would meet the demand for "local justice" that the Libyans seem to be articulating.

    As for why it hasn't been discussed much (aside from the posts Mark highlights, and uh, me in a lecture to an undergrad political science class on Monday), I think that's probably some combination of lack of awareness of the option and the fact that the ICC has so far been really reluctant to do this. (It was at least discussed in both the Kenya and DRC cases.)

    And yeah, it'll be news to me too if it turns out the ICC can somehow transform itself into a hybrid tribunal!

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