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
