Op Ed: Trying Saif,
Senussi in Libya: Why is Moreno-Ocampo so Lenient?
January 14, 2012 , By Mark
Kersten
I recently had the
opportunity to attend a seminar on the International Criminal Court and
complementarity in Libya, held by Leiden’s esteemed professor of international law, Carsten Stahn. The seminar
was organized by Jens Meierhenrich and was also attended by international
relations and international criminal justice scholar Kirsten Ainley.
Once the (excellent)
presentation was over, we got into a conversation about ICC Prosecutor Luis Moreno-Ocampo’s leniency
towards Libya’s insistence on trying Saif al-Islam Gaddafi and Abdullah
al-Senussi.
This post is an
attempt to think through some of the possible explanations for Moreno-Ocampo’s
complacent attitude.
The Background
Following the arrest
of Saif al-Islam Gaddafi and (false?) reports that al-Senussi had been
detained, there was an impassioned debate about where
they would be put on trial: in Libya or at the ICC. A third
option, supported
by the Office of the Prosecutor and number of observers, was for the
ICC to hold an ‘in
situ’ trial in Libya, but this was apparently nixed by Libyan
authorities. It quickly became
clear that Saif would be tried in Libya, by Libyans.
During a visit to
Tripoli to talk with the Libyan National Transitional Council, Moreno-Ocampo conceded that
Libya could and would try Saif:
“The standard of the
ICC is that it has to be a judicial process that is not organised to shield the
suspect… and I respect that it’s important for the cases to be tried in Libya…
and I am not competing for the case.”
It was an odd and, for
some, frustrating statement for a number of reasons. One, it isn’t in the powers of the Prosecutor to decide. As
many commentators have noted – and as the ICC’s Pre-Trial
Chamber I has clarified – if Saif was to be tried domestically, Libya
would have to file a complementarity challenge with the Court. Once the ICC’s Pre-Trial Chamber has approved
the opening of an investigation, let alone issued arrest warrants, it isn’t the prerogative of the Prosecutor
to decide where and when a trial can take place.
Second, the statement was quite out
of character for Moreno-Ocampo. He has never so publicly – and
obviously – expressed a desire to “return” a case. It would be unthinkable for
Moreno-Ocampo to even entertain the possibility of having Sudanese President,
Omar al-Bashir, against whom Moreno-Ocampo has had something of a personal
crusade, put on trial in Sudan. Moreno-Ocampo also didn’t express much, if any
interest, in having hearings in Kenya for the ‘Ocampo Six’. In sharp contrast,
this is exactly what Moreno-Ocampo did in the case of Saif’s trial - much to
the chagrin of those skeptical that Libya’s judiciary is sufficiently developed
to take on the case, and wary of Saif meeting a fate similar to that of his
father.
Here are a four
possible reasons why Moreno-Ocampo chose to throw his support, at least
nominally, behind a Libyan trial. Of course, some may be more persuasive than
others and they are in no particular order.
1. Playing its Part in
History: The ICC and the Arab Spring
It could be that
Moreno-Ocampo sees himself and the ICC as having a starring role in Libya’s
transition and consequently the Arab Spring more broadly. Who wouldn’t want a
little bit of that star-dust?
As a result, it is
possible that Moreno-Ocampo sees it in his purview to constantly and
consistently support the aims of democratic, transitional forces in Libya
– in this case, quite clearly, a domestic trial. Given that he will be vacating
his office at the ICC within months, it is also possible that Moreno-Ocampo
sees justice served in Libya as part of his legacy and believes that trying
Saif in Libya is simply the right thing to do.
2. An Infatuation with
Positive Complementarity?
Reflecting the ideal
of universal justice, Moreno-Ocampo has said on a number of occasions that the
best case scenario for global justice would be if the ICC had no cases at all
because domestic courts could adequately and legitimately try all cases of
crimes against humanity, war crimes and genocide.
In other words, the
best of worlds would be one in which the ICC wasn’t necessary or in which “positive complementarity” rules.
It is for this reason that some suggest that the case Moreno-Ocampo is most
proud of is Columbia, where pressure
from the ICC’s Office of the Prosecutor (OTP) is said to
have pushed the government to prevent amnestying those
allegedly responsible for human rights violations.
This is also reflected
in the opinion of many scholars of international criminal law. Jens
David Ohlin, for example, recently argued:
“In the best of all
possible worlds…[t]he ICC has the capacity to improve domestic legal systems
for the better as local officials promise more accountability and better
procedural protections in order to prevent the ICC from taking over a case.”
For the ICC, this
perspective is more than just rhetoric. In February 2010, the OTP issued its ‘prosecutorial
strategy‘ for 2009-2012, which it declared would be based on the principle
of “positive complementarity”. Judicial intervention by the Court will only be
done in “exceptional” circumstances and the OTP would actively encourage
domestic proceedings.
Given the above, it
could be that Moreno-Ocampo would like to see positive complementarity succeed
in one of the ICC’s high-profile cases. Right now, Libya might just be the only
viable option.
3. An ICC Trial Just
isn’t Possible
Not all commentators
are willing to admit this but there is, quite simply, no way that Saif will be transferred to the ICC. For a plethora of reasons, to borrow a
favourite saying, there’s a snowball’s chance in hell it will happen.
In Libya, there
appears to be no appetite amongst citizens for giving up Saif. The
National Transitional Council, has been clear: Libya will try Saif. The
international community and, in particular, the intervening forces in Libya,
undoubtedly could sway the decision, but they just don’t seem to care – even if
that does leave the ICC out to dry.
Given the minimal
chances of getting Saif in the dock in The Hague, it could be argued that the politically
pragmatic approach would be for Moreno-Ocampo to side with a trial in
Libya. Consistently insisting on an impossible outcome (having Saif
transferred) would be wasted time and effort. Worse, it could make the ICC look
impotent and weak. As David
Bosco has argued,
“the ICC at the moment
has a clear interest in downplaying Libya’s obligations while it negotiates.
Insisting loudly that Libya is already in violation of its legal obligations
would only highlight the court’s impotence.”
At the extreme, it
might fit Einstein’s definition of insanity: trying the same thing over and
over but expecting a different result.
4. Saif’s Case at the
ICC
It is at least
possible that Saif could be acquitted in a trial at the ICC. Widely
respected jurist, Geoffrey
Robertson has already suggested that Saif could have a good case in his defense:
“Saif has the makings
of an arguable defense. He was, after all, a member of Libya’s legitimate
government and thus entitled to urge and to use force reasonable in
the circumstances to put down an armed insurrection. In The Hague, if
Saif plays by the rules, he could put the prosecutor’s case to a scrupulously
fair test. He would be permitted to summon witnesses to his good character—his
friends Tony Blair and Peter Mandelson perhaps, or one of the LSE professors
who took his money. His judges would be independent and his conviction on the
basis of proof beyond reasonable doubt would by no means be a foregone
conclusion.”
International criminal
justice remains heavily tilted towards prosecution over defense. In the popular
imagination, international tribunals are supposed to convict the “bad guys” and
put “evil” behind bars. This is especially so for high-profile individuals, of
which Saif is certainly one. Rightly or wrongly, it would be an
embarrassment to the Court if it was unable to convict Saif.
Another issue should
also be considered here: if Saif were acquitted, perhaps even if he was found
guilty, Libya would likely request his return so that they could try him
for additional crimes outside of the jurisdiction of the ICC. In this
context, the death penalty comes into play. If Saif were returned to Libya by
the ICC, tried in the country and then sentenced to death, would the ICC not be
complicit in a human rights violation, namely, the death penalty?
This is undoubtedly a
complex question and depends on interpretations of the ICC as a human rights
court as much as an international criminal tribunal. Regardless, while
hypothetical, such a situation would put the ICC in a very tough bind and, like
the other points raised above, could help explain Moreno-Ocampo’s thinking.
About Mark Kersten
Mark is a PhD student
in International Relations at the London School of Economics. His work focuses
on the nexus of international criminal justice and conflict resolution.
Specifically, he is examining the effects of the ICC on peace processes and
negotiations in northern Uganda and Libya.
Source: Justice In Conflict
Source: Justice In Conflict
= = = == =
Libya insists Saif al-Islam
Gaddafi should be tried at home
NTC says that the
International Criminal Court should not be allowed to try Saif Gaddafi for his
role in Libya's civil war
Martin Chulov in
Tripoli , guardian.co.uk, Saturday 29 October 2011
Libyan officials are
determined to resist attempts to bring Muammar Gaddafi's son, Saif al-Islam,
before the international criminal court, claiming he should instead face
justice at home.
"We will not
accept that our sovereignty be violated like that,"
Libya's fledgling
civilian leadership has repeatedly sought assurances from the governments of
Mali and Niger that neither state would offer Saif Gaddafi refuge.
However, another son, Saadi,
is known to have crossed into Niger in September, where he remains under regime
protection. Saadi Gaddafi is not considered to have played a pivotal role in
the crackdown against anti-regime demonstrations in Benghazi in February
ICC accepts Gaddafi
son to be tried in Libya: minister
The ICC issued an
arrest warrant for Saif al-Islam after prosecutors accused him and others of
involvement in the killing of protesters during the revolt that eventually
toppled his father in August.
