Aug 29, 2011
Complementarity, Gaddafi and The Hague: An Answer to Geoffrey Robertson
Last week’s overthrow of the Libyan regime makes more likely the trial of Muammar El-Gaddafi, his son Saif al-Islam and intelligence chief Abdullah al-Sanussi for crimes committed against demonstrators in the early days of the Libyan uprising. The UN Security Council referred the case to the ICC under Chapter VII of the UN Charter. At the time, the referral was made under circumstances in which it was impossible to expect alleged crimes against humanity to be adequately investigated in Libya. In one of the many paradoxes that riddles the court, the actual overthrow of the Government makes trial at the Hague more tenable in practical terms but may make it less so politically. The new regime may be keen to try the dictator for a number of understandable reasons –retribution, symbolism, self-legitimisation – in addition to the very salient but oft-ignored fact that they have the sovereign right and responsibility to do so. The drumbeats for the ICC have begun, most notably a piece by former Special Court for Sierra Leone judge, Geoffrey Robertson in today’s Guardian, taking issue with British government policy that the fate of the Gaddafis should be a matter for the Libyan people.(For a more even handed examination, read this piece by former deputy chief prosecutor of the ICTY David Tolbert). Though the National Transitional Council has stated it intends to try Gaddafi itself, Robertson argues that it is “too much to expect that Gaddafi can receive justice at the hands of those whom he has repressed for so long, in a corrupt judicial system that he controlled (and so could not be considered “judicial” in any real sense).” Aside from confusing justice (which Gaddafi most assuredly would get) with fair trial (which is considerably more questionable), the presumption that Libya cannot produce a sufficient coterie of judges, prosecutors and lawyers either internally or from its impressive diaspora smacks of needless defeatism, especially when safeguards such as monitoring can be put in place to ensure a credible, albeit imperfect, trial.
There are very valid reasons why a new potentially liberalising polity (one must of course avoid undue whiggism) will wish to retain control of their own trial. Trials, perhaps moreso than elections or establishment of institutions, demonstrate that the gap between the law as written and the law as enforced, so wide in war or repressive rule, is being reduced in good faith. As Fletcher and Weinstein argue
“Another justification for criminal prosecutions of perpetrators of mass atrocities is that trials serve as powerful symbols of the new government’s intent to ‘break with the past’…..Through the judicial process, a new regime is understood to re-establish the orderly function of the civil state… Trials also represent a substantive claim about the legal character of a new regime.”
Lutz and Sikkink’s argument that no Latin American country wished to foster the perception that its courts lack the competence, capacity and independence to effectively try its own nationals is also true of other states – witness for example the vigour of diverse new rulerships in the likes of Cambodia, Rwanda, Tunisia etc of their ability to maintain control of their trial processes. While Chile at the turn of the century was in a stronger position that most societies engaged in justice sector reconstruction, the people’s sentiments are of general application in this regard:
“The consensus [that Pinochet’s trial should take place in Chile] was founded on both ideological and practical concerns. Although temporarily weakened during dictatorship, Chileans have a long history of pride in their judicial system, which has a reputation for impartiality, fairness and effective administration of justice. They also have a high level of national pride and confidence in their capacity to solve domestic problems without external interference.”
The enforcement of criminal justice is one of the special prerogatives of sovereignty in the reconstructing state and serves as a marque of where true sovereignty resides. The intuition that domestic trials resound more in a domestic setting is sound. The need to restore the authority of law raises interesting questions about the role of international actors in the justice system, which the Rome Statute and the Rule of Law Report specifically envisage, but runs contrary to the typical restriction most states maintain on legal services domestically and the relative autonomy of internationalized trial process developed outside institutional mechanisms of answerability. Debates on transitional justice and its internationalisation tend to overlook issues of democratic deficit and they key rule of law question of accountability of the justice sector.
Once more exemplifying how argumentum ad Bushem is slowly replacing argumentum ad Hitlerum as the liberal failsafe, Robertson argues against national trial because this was the line George Bush took after the capture of Saddam Hussein, as a rhetorical cover for his determination that the death penalty be imposed on the Iraqi despot by politically manipulated local judges. (One can be quite certain Saddam Hussein would still be alive, feasting on Dutch food and preparing for his opening statement in 2014 if he went to The Hague). The fact that the Iraqi people and their elected representatives wanted domestic trial instead of a democratically unaccountable process thousands of miles away does not factor into the equation. For all their mistakes in Iraq, the Rumsfeld/Cheney idea that a new Iraqi government needing to establish its bona fides should control its most significant trials is fundamentally sound, if even if the execution (ha!) of this policy was regrettable. Trial in Libya must exist in a vacuum, divorced entirely from the people and society in which crime occurred.
Robertson’s piece is almost entirely lacking in reasoned appraisal of the pros of trial in Tripoli (it may not be that surprising as the author of the almost- hysterically over-wrought Crimes Against Humanity, the SCSL Appeals Chamber in the RUF case was forced to disqualify Justice Robertson on the basis of statements made about Sankoh and the RUF in it). At one stage he argues “Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie, and almost as many in a UTA passenger jet over Chad a few months later – these are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that Gaddafi face real justice in The Hague and not revenge in Benghazi” ignores the fact that the ICC lacks retrospective jurisdiction (it can only try crimes that came after it came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force). The only court that can try these crimes is the highest criminal court in Libya, unless an ad hoc tribunal is established.
Perhaps of greatest concern is the wilful misreading by Robertson of international law. He argues that “liberation has come to the Libyans by courtesy of international law and they have a reciprocal duty to abide by it…. By adopting resolution 1973 the security council mandated Nato action in order to protect civilian lives, and nobody pretends that the regime could have been overthrown without that air, sea and logistical support. The rebel leaders have a legal duty to hand any captured indictees over to the ICC, and the UK should insist that they do so”. Resolution 1973 is utterly immaterial to the question of whether the case is inadmissible before domestic courts and thereby admissible in the Netherlands. The Rome Statute in Article 17 clearly envisions primacy of jurisdiction resting with the national court system. Only when the state is “unwilling or unable genuinely to carry out the investigation or prosecution” can the case be rendered admissible before The Hague. Up and until that can be proved (they certainly appear willing, and problems of ability may be exaggerated), Libya has jurisdiction.
As a final “Hail Mary” argument, Robertson contends that ‘”Gaddafi to The Hague” will send a chilling signal to all other governments tempted to kill their own people.’ The deterrent potential of the ICC is a question that many people have weighed, and found wanting. The Bashir indictment didn’t restrain Gaddafi, the Karadzic/Mladic indictments didn’t deter Milosevic in Kosovo, and there is little reason to expect the Assad regime to find extradition to the Netherlands any more frightening than trial before their own people, unlikely as it may now appear. If anything, the potential to argue about imperialism over a course of a decade from the comfort of a nice Dutch cell is considerably more attractive than being made accountable before those people the regime formerly abused as a matter of state policy.
Great post Padraig. I entirely agree with you on this point. The ICC was set up as a secondary court for this very reason, to allow states that were able and willing to try those suspected of the crimes listed in the Rome Statute themselves and to only use the ICC when other options were not available. The attempts by Robertson and others who agree with him to suggest that the ICC is invariably the better option runs counter to what the Rome Statute itself intended. The entire Libya operation in many ways is unique in that the intervention did not see any foreign troops openly fighting Libyans on the ground and as such enabled the Libyans to ‘own’ their own revolution.(Accepting the NATO involvement was probably more than what is being admitted) The new Libyan authorities in trying Gaddafi themselves would be continuing this positive aspect of the international intervention.