Nov 21, 2011
Saif From Harm? Wishful Thinking at The Hague
One of the most cutting criticisms of the International Criminal Court is that of imperialism, best captured in the cries that it is “A European Court for Africans.” This reproach is not always disinterested of course – the revival of anti-colonial language at the time of the Bashir indictment would have been more convincing was it not accompanied by Sudanese stonewalling over the Darfur atrocities. However, the Court makes the argument for globalised justice for itself when it attempts to dictate the course of bona fide national processes of criminal accountability. The prime example is its statement on the arrest of Saif Al-Islam Gaddafi, against whom warrants of arrest were issued by the Court in connection with the Libya situation by the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Ambassador Christian Wenaweser. He began in an unobjectionable manner, stating that “by arresting Saif Al-Islam Gaddafi the Libyan authorities have taken a major step towards ensuring accountability and due process rights and towards fulfilling their obligations under international law”, before commending Libyan authorities for their cooperation with the Court to date. He reminded his audience that under the Rome Statute, Libya retained primary jurisdiction over all crimes committed on its territory, but went on to say that “it must be ensured that Saif Al-Islam is tried in a court of law and in accordance with international standards. Should the Libyan authorities wish to try him in Libya, they can make the case before the Court that their national judicial system is willing and able to do so in an independent and impartial manner”. Philippe Sands in today’s Guardian argues that the new Libyan government is “bound by a legal framework: it cannot lawfully ignore the ICC judges and decide that Saif will be tried under local law. Unlike Iraq, where there was no international indictment of Saddam, the decision on Saif is not an exclusively Libyan affair.
As I have argued on these pages before, while the fairest trials possible are of course desirable, there is nothing in the complementarity regime which governs admissibility of cases about the fairness of trials. It is worthwhile to examine that framework:
Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
From statements by Libya authorities, they appear jealous of their jurisdiction. The Libyans make four very reasonable arguments in favour of domestic trial:
1. The will of the people
It is the will of the Libyan people that Saif be tried in his fatherland. Most Libyans agree, it seems. Flying Saif to The Hague would be interpreted as a loss of face for the new Libyan rulers. A related argument is that most Libyans want Saif to be executed for his crimes against the Libyan people, a penalty that will imposed on him by the ICC, which never sentences people to death.
2. A sign of authority from the Transitional Council
The National Transitional Council, Libya’s interim government, is eager to show the world that it is the sovereign authority and is able to organise complex trials. “The Libyan judicial system is capable of prosecuting people of Saif’s stature,” Libya’s interim Justice Minister Mohammed al-Alagi told Reuters. “The important thing is to ensure a fair trial. We have been preparing for this for months.”
3. Internal opposition
Libyan leaders are concerned about the possibility of internal opposition if they hand over a Libyan citizen to ‘the West’, particularly from tribes with close ties to the former Gaddafi regime. The Zintan fighters who arrested Saif on Saturday have said they intend to hold on to him until there is a functioning legal system in Libya.
4. Saif al-Islam as a ’hero’
Libyans are worried that Saif could take on some kind of hero status if he appears before the International Criminal Court in The Hague. The fear is that, with the world’s cameras on him, he might turn into a photogenic Arab role model or Islamic hero. “I think the ICC will just keep him away from Libyans and he will have a comfortable life. He’ll still be able to communicate with Gaddafi supporters from inside prison,” Libyan footballer Qais Abdel Nasser told Reuters.
By contrast, Sand’s suggestion that Libya will mimic Iraq arguing that we should “recognise that Iraq’s proceedings against Saddam circumvented many of his greatest crimes and came to an expedited conclusion, and wonder whether sham, local justice can ever be avoided in the aftermath of a bloody conflict” appears to suggest that unfair trial ineluctable follows Arab transition is at best the soft bigotry of law expectations. For those who advocate transfer to The Hague, it will be very hard to argue that Tripoli is unwilling to pursue accountability, while the meaning of “unable” had to be stretched in a Procrustean fashion to make it failure to abide by highest international fair trial standards. To bring the trial up to highest international standards would presumably cause the delay Article 17 is quite rightly correct to avoid. The better approach would be to lend assistance to domestic processes where needed and respect Libyan sovereignty instead of conducting an undignified scramble for jurisdiction. (Sands strangely ignores this possibility, arguing instead for an ICC trial situated in Libya).
The current debate framed by antagonism to the domestic development of judicial credibility once more proves Schabas prediction that “[t]he term ‘complementarity’ is something of a misnomer, because what is established is a relationship between international justice and national justice that is far from complementary. Rather, the two systems function in opposition and to some extent with hostility vis-a-vis each other.” The Statute allows, and may even be said to envisage, successive reactive assertions of jurisdiction, but in cases where the state is foot-dragging. The wilful misinterpretation of Articles 17 and 19 appear to substitute a zero-sum game to a process of constructive, willing and proactive international assistance to supply the want of will or expertise on the part of the Government. It will become much harder to accept help if it is tinged with imperialism. If the latter were preferred, the ICC Prosecutor would be conscious that any collaboration with a domestic proceeding (thereby boosting willingness and ability) would damage admissibility even though a transfusion of assistance would make obstructive or dilatory processes less likely. The Lubanga case, for example, demonstrated an overwhelming preference on the part of the Prosecutor for admissibility at The Hague over assistance to Congolese authorities. The Statute makes proving unwillingness difficult and sets a negotiated, State-centric minimum standard procedure for complementarity. Where opportunity exists to side-step the evidential difficulties of Article 17 and to make the complementarity process more collaborative, the ICC Prosecutor should take them – as Kleffner argues, accountability may be better secured by “affectionate partnership” than an “ugly divorce”. It is difficult to argue Libya is breaching international law when the ICC’s own statute is interpreted on the basis of wishful thinking.
Surely the issue is that the ICC arrest warrant dates from June, at which time issues as to complimentary did not arise as Libya could never have staged a fair trial. And so Libya is well within its rights to assert its willingness and ability to stage a fair trial in the here and now. And thus the default position today, post war, is naturally a presumption in favour of domestic prosecution.
What role for the international judiciary in this process – I don’t know but I’d like to think, at least some.