ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: Dapo Akande

http://www.ejiltalk.org/icc-decides-on-immunities-and-privileges-of-defence-counsel-and-icc-staff/

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

First, in relying on Article 48, the Pre-Trial Chamber has confirmed the argument that I made at the time that this provision of the Statute is binding on Libya, though Libya is not a party to the Statute and though the Security Council did not say explicitly that the whole Statute is binding on Libya. The explanation for this is that Libya’s obligation, under UN Security Council Resolution 1970, is an obligation to cooperate in accordance with the Statute (see previous post).

The second point is that Pre-Trial Chamber relied only on Art. 48(4) which refers to the immunities of “counsel, experts, witnesses or any other person required to be present at the seat of the Court” but did not refer to Art. 48(3) which refers, inter alia, to the immunities of the “staff of the Registry.” In my previous post, I had argued that both are applicable to defence counsel provided by the OPCD. This argument is based on the fact that the OPCD is a part of the ICC Registry, though it is independent. The Pre-Trial Chamber decision may be seen as an implicit rejection of the argument I put forward but the Chamber did not elaborate on this. I would like to see an argument that says OPCD lawyers are not part of the registry staff though OPCD is a part of the Registry. The failure to refer to Art. 48(3) is especially curious given that not all of the four detained personnel were part of OPCD. Some were clearly Registry staff. So why not refer to the provision that best fits them?

The third point, and perhaps ultimately the most important, is the fact that the Pre-Trial Chamber not only “noted” 2002 Agreement on the Privileges and Immunities of the International Criminal Courtbut seemed to apply it. Art. 48 provides that the privileges and immunities it provides for exist “in accordance with the agreement on privileges and immunities of the Court”. In its decision, the Pre-Trial Chamber held that:

“in accordance with article 26 of the Agreement on Privileges and Immunities of the International Criminal Court, it is not for this Chamber to determine whether there are grounds for waiving the privileged nature of the Defence documents seized in Zintan.”

This suggests that the Chamber took the view that the provisions of the Agreement was determinative. Libya is not a party to this agreement and  it seems to me that the only way to argue that the Agreement is determinative is that Art. 48 suggests that it is. But if Art. 48 makes the Agreement on Privileges and Immunities binding on Libya, this suggests that the agreement is also binding for those States party to the Rome Statute, even if they have not ratified the Agreement. Such an argument would be far reaching as it would mean that States are bound by a treaty that they have not ratified. However, it is not easy to see what else Art. 48 of the Rome Statute means when it refers to immunities “in accordance with” the Agreement on Privileges and Immunities.

Statement on the detention of four ICC staff members

http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr815?lan=en-GB

Press Release: 22.06.2012

Statement on the detention of four ICC staff members

ICC-CPI-20120622-PR815

On Friday, 22 June 2012, Mr. Abdelaziz Al-Hassadi, Attorney General of Libya, heading a high level Libyan delegation, visited the International Criminal Court (ICC) in The Hague (Netherlands) where he met with the ICC President, Judge Sang-Hyun Song, the ICC Registrar Silvana Arbia, and other ICC officials to discuss the situation of the four ICC staff members held in Zintan, Libya, following their mission to visit Saif Al-Islam Gaddafi, who is subject toprosecution before the ICC for alleged crimes against humanity.

During the meeting, Mr. Al-Hassadi presented to the ICC officials information regarding the visit of the four staff members to Zintan on 7 June 2012.

The ICC President thanked the Attorney General for visiting the Court. He expressed appreciation for the mutual trust confirmed in the meetings and welcomed the commitment of the Libyan authorities to cooperate fully with the ICC in accordance with United Nations Security Council resolution 1970 (2011). The President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.

The ICC takes very seriously the information reported by Libyan authorities in relation to the ICC staff members’ visit. The ICC fully understands the importance of the matter for the Libyan authorities and the people of Libya.

The Court attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws. The information reported by the Libyan authorities will be fully investigated in accordance with ICC procedures following the return of the four staff members. For this purpose, the Court will be seeking further background information from the Libyan authorities. The ICC will remain in close contact with the Libyan authorities to inform them of progress.

The ICC deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya.

When the ICC has completed its investigation, the Court will ensure that anyone found responsible for any misconduct will be subject to appropriate sanctions.

In fulfilling its mandate to end impunity and providing justice to victims, the ICC is ready to assist national authorities with their investigations if requests are submitted to the Court. The ICC is committed to continued mutual cooperation with the Libyan authorities and will do everything it can to assist them.

The ICC is extremely grateful to the Libyan authorities for their commitment to take all necessary action for the release of the Court’s staff members and their speedy reunification with their family members.

No winners in ICC-Libya standoff

No winners in ICC-Libya standoff

http://mideast.foreignpolicy.com/posts/2012/10/08/no_winners_in_icc_libya_standoff

Mark Kersten   Monday, October 8, 2012 

(battle b/w the Libyan transitional government and the ICC over where to try Muammar al-Qaddafi's son Saif al-Islam and the former regime's mysterious intelligence chief Abdullah al-Senussi; the aims of both parties turned out to be undermined )

Libya's embattled transitional government is not only struggling to appoint a cabinet, disarm its powerful militias, and deal with the aftermath of the attack on the U.S. consulate in Benghazi. It is also locked in a tense battle with the International Criminal Court (ICC) over where to try Muammar al-Qaddafi's son Saif al-Islam and the former regime's mysterious intelligence chief Abdullah al-Senussi. Since the fall of Qaddafi's regime and the assertion of a newly sovereign Libya, the ICC's intervention has degenerated into a controversial and, at times, acrimonious battle between Libya's new rulers and the Court over where the highly prized indictees should be tried. Over the past year, Libya's transitional government has sought to demonstrate its effective sovereignty to its citizens and the world by proving itself able and willing to prosecute senior members of the Qaddafi regime. At the same time, the ICC has striven to establish itself as an effective institution that can have positive effects on post-conflict accountability. However, the fight over where to try Saif and Senussi may ultimately serve to undermine the aims of both the ICC and Libya -- not to mention the pursuit of post-Qaddafi justice.

(Whereabouts of both indictees)

The ICC intervened in Libya when the United Nations Security Council referred the deteriorating situation in the country to the ICC on February 26, 2011. With unprecedented speed, the Court opened an investigation in early March and, in June 2011, issued arrest warrants for Libyan leader Muammar al-Qaddafi, Saif al-Islam, and Abdullah al-Senussi. Following the death of Qaddafi in October 2011, only Saif, his father's former heir apparent, and Senussi, the former intelligence chief many believe was responsible for the murder of 1,200 Libyans in the 1996 Abu Salim Prison Massacre, remained alive. As the regime crumbled in the summer of 2011, both went on the run. In November 2011, Saif was captured by Zintani militiamen in the southern desert expanses, disguised in traditional Tuareg robes. He was subsequently taken to Zintan where he remains to this day. Despite recurrent rumors that Senusssi had also been arrested, it was only after a joint operation between Mauritania and France in March that he was finally detained. After months of speculation -- and to the surprise of many -- Senussi was extradited to Libya in early September.

(the basis of the Libyan government for exercising jurisdiction - complementarity)

Government officials have been adamant that both be tried by Libyan judges in Libya and not at the ICC. As Ahmed Jehani, Libya's representative to the Court declared: "No amount of pressure will push Libya" to surrender Saif al-Islam or Senussi. But both remain wanted by the ICC. As a result, in May Libya filed an admissibility challenge at the Court, claiming that it was actively investigating Saif and Senussi and that, therefore, the case was inadmissible at the ICC under the Court's principle of complementarity which grants the ICC the ability to investigate and prosecute only when the host state is unable or unwilling to do so.

(the Libyan government helps its case; Ocampo's lenience toward the gov. ; international community uninterested in supporting the ICC)

To help its case, Libya unveiled a refurbished courtroom in Tripoli as well as a luxurious prison complex outside of the capital where it was claimed that Saif would be held during his trial. The ICC's former prosecutor, Luis Moreno-Ocampo, appeared content to rest on the laurels that the Court had contributed positively to Libya's pursuit of accountability. He capitulated to Libya's demands to try its prized prisoners in Libya and, rather controversially, appeared with officials from Libya's National Transitional Council (NTC) on a number of occasions. In January, Moreno-Ocampo even declared that, "I respect that it's important for the cases to be tried in Libya ... and I am not competing for the case." Moreno-Ocampo's remarks reflected the rather stark reality that the ICC would end up empty-handed. Not only has there been no inclination amongst Libyan officials to transfer Saif or Senussi to The Hague, but the international community -- particularly the U.N. Security Council -- has shown virtually no interest in supporting the Court's mandate in Libya. In short, very few international political actors with any influence have been willing to wield it in support of the Court.

(the argument for the ICC’s trial – death penalty; the legitimacy of Libyan judicial system)       

Still, proponents and staff of the ICC clearly disagreed with Moreno-Ocampo's lenience toward the NTC. There remain prevalent fears -- likely for good reason -- that Saif and Senussi will receive the death penalty, a verdict in deep contradiction with the basic impulse of human rights advocates and many international lawyers. Others point to the fact that Libya's judiciary was virtually non-existent for four decades and consequently lacks the capacity to impartially and legitimately try Saif or Senussi. But the battle over their fate has not only taken place between the ICC and Libya's new rulers. It has also occurred within the ICC, exposing bitter tensions.

(the division within the Court)

Responding to Moreno-Ocampo's unprecedented lenience toward Libya's obligations to the ICC, the Office of Public Counsel for the Defense (OPCD), formally appointed to represent Saif, criticized the prosecutor for applying double-standards and even requested that the ICC's Pre-Trial Chamber remove Moreno-Ocampo from the case because of the "objective appearance that the Prosecutor is affiliated with both the political cause and legal positions of the NTC government." The Appeals Chamber ultimately rejected the OPCD's motion but not before issuing an unprecedented rebuke of the prosecutor's behavior, ruling that it "was clearly inappropriate in light of the presumption of innocence" and "may lead observers to question the integrity of the Court as a whole." Despite ongoing animosity, however, no one could have foreseen the debacle that was the illegal arrest and detention of ICC defense counsel staff.

(the illegal arrest and detention of ICC defense counsel staff)

Notwithstanding widespread recognition that ICC staff qualify for diplomatic immunity, four staff members, including Australian lawyer Melinda Taylor, were detained following a meeting with Saif in Zintan on June 7 on allegations that they had been "spying." What followed was a microcosm of the ICC's experience in Libya. Reflecting the international community's general lack of concern with the Court's work in post-Qaddafi Libya, with the exception of a weakly worded statement, the Security Council appeared entirely apathetic. It also quickly became clear that the staff's detention was politically motivated. Nick Kaufman, a lawyer for the Qaddafi family, noted that the four ICC staff members had "fallen victim [to] this hostility which is because of the intensity of the litigation," and that ICC "filings contributed to cementing the, shall we say, anger of the local authorities holding Saif." It later emerged that Libyan authorities had arrested the staff as "retaliation" for the defense counsel's previous filings. Still, with few options available and following public statements from Australia's Foreign Minister Bob Carr encouraging them to apologize to Libya, the ICC eventually submitted a formal statement of regret for any "difficulties" caused by its staff. Stunningly, Moreno-Ocampo appeared to blame the ICC staff for their predicament, declaring that "[i]t's not what we would expect of the Court, of the defence."

(alternatives that could have been pursued)

It is important to remember that it did not have to be this way. The polarizing battle between proponents of a trial in Libya versus those advocating a trial in The Hague deflected attention from legal and political options that existed which could have satisfied the interests of Libya and the ICC. Two of these alternatives are particularly noteworthy. First, the ICC could have held an in situ trial wherein ICC judges would hear cases and temporarily sit in Libya. Second, the trials could have been held in sequence, with Saif and Senussi tried in Libya and then transferred to The Hague (or vice versa). Both of these options could have met the need for the NTC to retain its sovereignty and demonstrate its commitment to international law and justice. It also would have allowed the ICC to hear key cases and demonstrate that it is willing and able to be politically sensitive to the desire of Libyans to see justice served where crimes occurred rather than divorcing proceedings from victims and survivors. Of course, neither an in situ trial nor a sequencing of trials would have been perfect or risk-free options. However, both could have avoided the animosity of the current debate regarding the fate of Saif and Senussi by finding a middle ground to serve the interests of both Libya and the ICC -- not to mention the interests of justice. Unfortunately, neither of these options were sufficiently elaborated or explored by Libya or the ICC.

(the risk the ICC has to take if it were to accept the admissibility challenge)

So what does all this mean for post-Qaddafi justice, Libya, and the ICC? A major hurdle in Libya's admissibility challenge was overcome with the extradition of Senussi. Had the Libyan government not been able to demonstrate that it has custody of Saif and Senussi, it would have been difficult, if not impossible, for ICC judges to accept the government's admissibility challenge. Yet, while the Libyan government has engaged the ICC from the beginning -- something that must be acknowledged -- accepting Libya's admissibility challenge risks implicitly endorsing the behavior of Libya in illegally arresting and detaining ICC staff protected by diplomatic immunity. The judges may also resist siding with Libya to avoid the appearance of endorsing the death penalty for Saif or Senussi, a verdict that many observers believe would be all but certain if they were tried in the country. Moreover, the Pre-Trial Chamber may rule that delays in putting Saif on trial (he has been held in detention without trial for almost a year) constitute a violation of international due process and, consequently, rule against Libya's admissibility challenge.

(Libya’s desired reputation tarnished)

Equally important, Libya's desired reputation as an emerging democratic state that respects human rights and the rule of law has been tarnished. Commenting on the detention of Taylor and the ICC staff in Libya, Richard Goldstone wrote, "[w]hat is effectively an act of kidnapping also regrettably demonstrates that there is as yet no rule of law in Libya domestically. Ultimately, what has happened has justified the insistence by the ICC that Saif should be tried in The Hague." When Senussi was extradited, Sir Geoffrey Robertson stated that Senussi faced "not justice, but revenge" in Libya. These views are common amongst advocates of international criminal justice and reflect widespread concern that Libya is fostering a culture of selective justice and impunity.

It seems probable that the ICC's intervention in Libya will have greater effects on the Court than on Libya, particularly in terms of how it will function in fragile, post-conflict contexts in the future. This finding is, in itself, of significance, as it contradicts a generally held assumption that whenever the ICC intervenes in ongoing or recently concluded conflicts, its primary impact will be on the decision-making of state actors. In Libya, however, this does not appear to be the case. More specifically, the authority and legitimacy of the ICC seem likely to suffer in the wake of its intervention in Libya. Of course, this is in large part due to the failure of the international community, particularly the members of the U.N. Security Council that put the ICC's intervention into Libya in motion, to support the Court's work in Libya. But the ICC's own decision-making may also have significant ramifications on its future capacity to function effectively in conflict and post-conflict contexts. First, the Court's apology to Libya is likely to affect the capacity of ICC staff to operate in similar environments in the future. The ICC's apology to Libya in the Taylor affair appeared to send the message that the illegal arrest and detention of ICC staff was, at least in part, the fault of the Court. The danger is that this could set a precedent and encourage states to abuse the rights of ICC staff. Second, the OTP's leniency toward Libya and its currying favor with the NTC is something that must be more critically addressed as it has diminished the Court's perception as an impartial and independent institution. Third, the bitter divisions that have emerged within the Court must be resolved. To ultimately be an effective, independent and impartial Court, the ICC must have a well-functioning OTP and OPCD. Lastly, the ICC may want to think more carefully in the future about accepting Security Council referrals. The Libyan experience demonstrates that the Council is willing to instrumentalize the Court but unwilling to lend it much in terms of political support. Together, these developments will have implications on the capacity of the ICC to contribute to the pursuit of conflict and post-justice for the foreseeable future.

The battle for, and pursuit of, post-conflict justice in Libya has been rife with missed opportunities, misguided decision-making, and controversy. Post-Qaddafi Libya, is unlikely to ever seriously consider giving up its prized prisoners to the ICC. The international community, especially the U.N. Security Council, walked away from its obligations to the ICC a long time ago. After a challenging and tumultuous period of unprecedented controversies, it may now be time for the ICC to reconsider its role as well.

Mark Kersten is a PhD candidate in International Relations at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution, specifically examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya. He is also the creator and co-author of the blog, Justice in Conflict

http://www.academia.edu/1947980/Justice_After_the_War_The_ICC_and_Post-Gaddafi_Libya

Anti-American Violence in the Middle East

http://csis.org/publication/anti-american-violence-middle-east

Anti-American Violence in the Middle East

By Haim Malka, Thomas M. Sanderson

SEP 14, 2012

Q1: What was the security situation in Libya leading up to the attack on the U.S. consulate in Benghazi?

A1: As international attention focused on the violence in Syria over the past year, many hoped that Libya was beginning to stabilize. Embassy personnel from many countries were returning, business delegations and consultants explored opportunities in the oil-rich nation, and successful elections were held in July. But these few signs of normality masked a deeply unstable, lethal environment. The young government confronted a still-unsteady nation abundant with weapons, Qaddafi loyalists, uncontrollable militias, and Salafi jihadi fighters. The new government has been unable to impose a monopoly on the use of force or secure the weapons that were pilfered from Qaddafi’s dispersed arsenal. Whereas the Egyptian Army largely controls that nation’s weapons, in Libya small groups still hold truck-mounted antiaircraft guns, mortars, and rocket-propelled grenades (RPGs). This past summer included a spate of attacks on nongovernmental organizations, Sufi shrines, and Libyan government buildings. In June and July in Benghazi, Tunisia’s consulate and Britain’s ambassador to Libya were both assaulted in separate incidents, and an improvised explosive device (IED) was used against the U.S. mission.

Q2: Are we likely to see similar attempts on U.S. embassy personnel elsewhere in the region?

A2: Only hours following the attack on the U.S. mission in Benghazi, the U.S. embassy in Yemen was assaulted. While no Americans were killed in the more heavily fortified compound in the capital of Sana, U.S. diplomatic staff are increasingly at risk across the region. But the well-armed, heavy assault in Libya was qualitatively different from what transpired in Egypt and Yemen. Those climbing the walls at the U.S. embassy in Cairo and smashing windows at the U.S. embassy in Sana were unequal to those in Benghazi, who used machine guns, mortars, and RPGs. Though these crowds lacked the armament of those in Libya, their numbers, improvised weapons, and motivation make them dangerous nonetheless. The threat in such a highly charged environment is that more heavily armed militants could use such riots as cover for deadly attacks.

Q3: How will the attacks affect U.S. policy in the Middle East?

A3: While horrific, the attacks will not likely lead to a fundamental shift in U.S. military deployments in the foreseeable future. Yet, they will likely trigger a rethink of how U.S. diplomats are allowed to do their jobs in the Middle East. President Barack Obama reiterated his commitment to working as a partner with the new Libyan government, and that is not likely to change as long as the Libyan government welcomes U.S. support. How the United States goes about cooperating with Libya and other regional governments, however, is less clear. Ambassador Christopher Stevens was an active diplomat throughout Libya and had built a rapport with rebel groups in Benghazi during the most violent days of the uprising against Qaddafi. That made him an indispensable interlocutor with the new Libyan government and a range of political forces in Libya. His killing raises doubts about the procedures in place to secure U.S. diplomats, and it could lead to limiting the kinds of activities and contacts U.S. diplomats are allowed to pursue throughout the Middle East. Such a setback would further isolate U.S. diplomats at a time when U.S. interests are served by wider engagement.

Q4: Why is anti-American violence increasing in the Middle East?

A4: The overthrow of authoritarian regimes in Libya, Tunisia, Yemen, and Egypt in 2011 unleashed violent anti-American forces that the previous governments had largely kept in check. Some of those forces have used the pretext of an offensive film produced in the United States to foment anti-American sentiment and actions. In the wake of political upheaval, governments are less capable and willing to rein in militant forces that pose a threat to U.S. interests and to their own societies. In many cases, the police are just a shadow of their former selves, domestic intelligence services are in disarray, and all manner of crimes are on the rise. This increase in violence poses a challenge not only to U.S. diplomats but threatens to undermine the fragile transitions underway throughout the region.

NATO too reliant on the US for I.S.R. (intelligence, surveillance and reconnaissance)

http://www.nytimes.com/2012/04/15/world/africa/nato-sees-flaws-in-air-campaign-against-qaddafi.html?seid=auto&smid=tw-nytimesglobal&pagewanted=print

NATO Sees Flaws in Air Campaign Against Qaddafi

By ERIC SCHMITT , Apr. 14, 2012

(a confidential NATO assessment confirms the lack of ability to carry out campaign without support from the US)

WASHINGTON — Despite widespread praise in Western capitals for NATO’s leadership of the air campaign in Libya, a confidential NATO assessment paints a sobering portrait of the alliance’s ability to carry out such campaigns without significant support from the United States.

The report concluded that the allies struggled to share crucial target information, lacked specialized planners and analysts, and overly relied on the United States for reconnaissance and refueling aircraft.

The findings undercut the idea that the intervention was a model operation and that NATO could effectively carry out a more complicated campaign in Syria without relying disproportionately on the United States military. Even with the American help in Libya, NATO had only about 40 percent of the aircraft needed to intercept electronic communications, a shortage that hindered the operation’s effectiveness, the report said.

Mounting an operation in Syria would pose a bigger challenge than the seven-month campaign that drove Col. Muammar el-Qaddafi of Libya from power, American officials said. Syria has a more capable military as well as a formidable array of sophisticated Russian-made air defenses that Pentagon officials say would take weeks of airstrikes to destroy.

Also, the Syrian opposition is more disjointed and dispersed than Libya’s, making allied efforts to coordinate with the rebels more difficult, a senior NATO official said.

“If anything were to be envisaged over Syria, even in purely hypothetical terms, it would also rely heavily on U.S. capabilities,” said one senior European diplomat who reviewed the 37-page NATO report, which was completed in late February.

The report, whose findings and recommendations are expected to be endorsed by NATO ministers at a meeting in Brussels this week, is consistent with preliminary assessments that European and Canadian planes carried out the bulk of the combat flights to protect Libyan civilians, while the United States provided military support that was essential in accomplishing the mission.

But the report and more than 300 pages of supporting documents, copies of which were obtained by The New York Times, offer telling new details about shortcomings in planning, staffing and conducting the combat mission, as well as how commanders improvised to adjust.

(NATO relies on the US particularly for ..)

The report also spotlights an important issue for the alliance that dates to the Balkan wars of the 1990s: that the United States has emerged “by default” as the NATO specialist in providing precision-guided munitions — which made up virtually all of the 7,700 bombs and missiles dropped or fired on Libya — and a vast majority of specialized aircraft that conduct aerial intelligence, surveillance and reconnaissance missions, or I.S.R. in military parlance.

“NATO remains overly reliant on a single ally to provide I.S.R. collection capabilities that are essential to the commander,” the report said.

NATO’s efforts to address the over-reliance

In this criticism, however, several American and other allied officials said they saw a silver lining. The NATO report played a significant role in helping the alliance agree in February to acquire its own dedicated air-to-ground surveillance system to track and target hostile ground forces, the officials said.

The assessment also helped spur a French-led initiative backed by the Obama administration to establish a hub for allied surveillance aircraft, including Predator and Global Hawk drones, at an Italian air base in Sicily. This concept is modeled after a similar approach NATO has developed in Afghanistan, and it is expected to be approved by allied leaders at a NATO summit meeting in Chicago next month.

In addition, European defense ministers agreed last month on an ambitious proposal to expand the allies’ aerial refueling fleet, another American-backed measure that NATO officials will highlight in Chicago.

“NATO always draws the lessons from its operations, and we’re already doing that with Libya,” Adm. James G. Stavridis, an American officer who is the alliance’s senior military commander, said in an e-mail statement.

Most of the recommendations, particularly those that involve buying expensive aircraft and technical equipment, could take years to put in place.

And those solutions will not address the immediate concerns raised by advocates of using allied air power to stop the slaughter of civilians in Syria.

Two of those advocates, Senators John McCain, Republican of Arizona, and Joseph I. Lieberman, independent of Connecticut, toured a Syrian refugee camp in Turkey before a fragile, United Nations-brokered cease-fire took hold last week. They once again called on the international community to arm the Syrian rebels and to intervene militarily to create and protect havens for Syrian civilians and rebels receiving training.

“Airstrikes would help to establish and defend safe havens in Syria, especially in the north, in which opposition forces can organize and plan their political and military activities against Assad,” Mr. McCain said last month at a Senate Armed Services Committee hearing, referring to President Bashar al-Assad of Syria.

President Obama has requested that the Pentagon begin preparing preliminary military options in Syria — a routine step for military contingency planning during crises overseas — but the administration still believes that using diplomatic and economic pressure is the best way to stop the violent repression by the Syrian government.

The report, completed on Feb. 28 by NATO’s Joint Analysis and Lessons Learned Center in Portugal, identified 15 political, organizational and equipment lessons learned, including several shortcomings.

(other problems)

Information about targets in Libya was drawn largely from the databases of individual nations, and much of this could not be shared rapidly among NATO members and partners because of “classification or procedural reasons,” the report found.

“Nations did not effectively and efficiently share national intelligence and targeting information among allies and with partners,” the report said. “The inability to share information presented a major hindrance to nations deciding if a target could be engaged” based on information from another country.

The NATO command in Italy suffered from serious shortages of political and legal advisers, intelligence analysts, logistics planners, linguists, and specialists in selecting targets, called targeteers. “Many targeteers had not been adequately trained on deliberate, dynamic or time-sensitive targeting,” the report said, adding that many specialists were assigned to the command for only a few weeks.

The report was silent on the controversies that have followed the campaign. These included questions surrounding at least scores of civilian deaths caused by NATO action, which have been documented by independent researchers and the United Nations alike, and accusations by survivors and human rights organizations that alliance naval vessels did not assist boats in distress carrying migrants who later perished at sea.

Fred Abrahams, a special adviser for Human Rights Watch, said the report was consistent with the alliance’s refusal to acknowledge clear mistakes, and revealed a “willful decision not to look at civilian casualties.”

“It’s not lessons learned, it’s lessons lost,” he said by telephone from New York. “There is no reason whatsoever, in an otherwise effective campaign, not to look back and explore the areas where things went wrong.”

The report also passed over a number of tactical details without examining the rationale for them or their potential risks and consequences. It noted, for example, that the alliance itself did not have what it called “boots on ground” but did not disclose that forward air control teams — troops on the ground to help guide planes to intended targets — were used later in the conflict by member nations, or that the anti-Qaddafi forces were providing targeting recommendations to NATO via informal means, sometimes even by way of Twitter or e-mail.

C. J. Chivers contributed reporting.

Libya report by Human Rights Council

The International Herald Tribune

U.N. criticizes inquiry of NATO raids in Libya

NEIL MACFARQUHAR, March 5, 2012 Monday

NATO has not sufficiently investigated the air raids it conducted on Libya that killed at least 60 civilians and wounded 55 more during the conflict there, according to a new United Nations report.

Nor has Libya's interim government done enough to halt the disturbing violence perpetrated by revolutionary mili-tias seeking to exact revenge on loyalists, real or perceived, to the government of Col. Muammar el-Qaddafi, the report concluded.

Published without publicity Friday on the Web site of the U.N. Human Rights Council, based in Geneva, the report details the results of an investigation by a three-member commission of distinguished jurists. It paints a generally gloo-my picture of the level of respect for human rights and international law in Libya, while acknowledging that the prob-lem is a legacy of the long years of violent repression under Colonel Qaddafi.

The commission members tried to ascertain how Colonel Qaddafi had died, but said the Libyan authorities did not give them access to the autopsy report, so further investigation was needed. Graphic videos of his last day alive on Oct. 20 suggest that the revolutionaries who captured him near his tribal hometown, Surt, beat him and executed him with gunfire. 

.
A HRC 19 68 Libya Report

.

Saif to be tried in Libya

http://feb17.info/news/op-ed-trying-saif-senussi-in-libya-why-is-moreno-ocampo-so-lenient/

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

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http://www.guardian.co.uk/world/2011/oct/29/libya-saif-gaddafi-justice

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

http://www.reuters.com/article/2012/01/23/us-libya-saif-idUSTRE80M0Q820120123

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.