How Libya became the International Criminal Court鈥檚 latest failure
Yvonne McDermott, of the writing in . Read the .
Since the fall of Colonel Gaddafi in 2011, Libya鈥檚 government and institutions have struggled to hold the country together. The justice system, in particular, has become a symbol of all that鈥檚 wrong with post-Arab Spring Libya.
A has emerged showing one of Gaddafi鈥檚 sons, Saadi, apparently being tortured in jail 鈥� this after a Tripoli court Saif Al-Islam Gaddafi to death in absentia (he remains in jail in Zintan, held by a militia 鈥済overnment鈥� that rejects the administration in Tripoli).
He was condemned to die along with former intelligence chief Abdullah al-Senussi and eight other members of the old regime, who are being held by the Tripoli authorities.
There are worrying questions over all these sentences. Both Saif Gaddafi and al-Senussi were subject to issued by the International Criminal Court (ICC) in 2011, which Libya chose not to honour 鈥� and which the ICC was powerless to enforce.
At a time when the court finds itself under increasing pressure, Libya鈥檚 treatment of figures from the old regime is a stark example of the stakes for international justice. It鈥檚 also a reminder of how little clout the ICC really has at a time when it鈥檚 arguably needed more than ever.
Hands off
Earlier international criminal tribunals, such as the and the , had primacy over national courts, which meant that they could require states to defer cases to the international tribunal. These tribunals later began transferring cases to domestic states 鈥� but only where they were assured that the accused would not be subjected to the death penalty and would receive a fair trial.
This helped improve states' own legal standards and practices. Rwanda, for example, and introduced new witness-protection measures to pave the way for the international tribunal to transfer cases back to domestic control.
By contrast, the ICC exercises jurisdiction under a principle known as 鈥渃omplementarity鈥�, which means that it can only try a case where the state that has jurisdiction is either unwilling or unable to prosecute.
That principle allowed Libya to challenge Gaddafi and al-Senussi鈥檚 cases going to the ICC, since it was willing and able to try them in a domestic court. The defendants, on the other hand, wanted to be tried by the ICC 鈥� they were keen to avoid the death penalty (which the ICC cannot issue) and argued they would not get a fair trial in Libya.
Ultimately, the ICC that the trial against al-Senussi could take place in Libya, rejecting his defence team鈥檚 argument that a state could not be considered genuinely 鈥渨illing鈥� to conduct proceedings if it failed to respect the accused鈥檚 right to a fair trial. Despite those concerns, the Appeals Chamber effectively explained away al-Senussi鈥檚 lack of access to a lawyer as being 鈥渄ue primarily to the security situation in the country鈥�.
By contrast, the case against Gaddafi was before the ICC, largely because of Libya鈥檚 inability to try the accused, given that Libyan authorities had not been able to secure transfer of Gaddafi to stand trial (and indeed, they remained unable to do so, with much of his trial proceeding in his absence).
In spite of the ICC鈥檚 ruling that Gaddafi should be tried in The Hague, and not Libya, the fact that he was never transferred to stand trial illustrates one of the court鈥檚 biggest weaknesses: it lacks an independent enforcement mechanism and relies entirely on state co-operation to secure the transfer of defendants to its custody.
This is the problem that has played out in the Libyan case. In December 2014, the ICC that Libya (which is not a party to the ICC鈥檚 founding treaty) had not complied with its requests and referred the matter to the Security Council. The Security Council did Libya to cooperate with the court in May 2015, but in vague terms and without explicit mention of Saif Gaddafi鈥檚 transfer.
This is not the first time the Security Council has referred a situation to the ICC and then failed to help the court handle it. In December 2014, the prosecutor the Council鈥檚 hands-off attitude towards the situation in Darfur, which it referred to the ICC in 2005, and said that she was left with no option but to 鈥渉ibernate investigative activities in Darfur鈥�.
Back seat
Al-Senussi鈥檚 case highlights another problem with the ICC: its failure to encourage fair trials.
In its decision on al-Senussi, the ICC interpreted its role in a quite a limited way. It decided that it can only take a lack of judicial impartiality into account where it鈥檚 part of a deliberate effort to help the accused evade justice, rather than simply a fact of a flawed justice system.
So by allowing al-Senussi鈥檚 trial to continue in Libya despite concerns about the fairness of the process, the ICC has made itself complicit in the resulting sentence.
Some might argue that complementarity means the ICC just can鈥檛 fulfil the same moral function as other tribunals. I ; the reference to 鈥渄ue process鈥� in the complementarity clause is perfectly ambiguous. It certainly leaves room for the Court to take fair trial considerations into account when it decides whether a case is admissible.
Instead, it鈥檚 given its implicit consent for al-Senussi鈥檚 death sentence after a deeply flawed trial 鈥� another strike against its already tattered reputation.
Publication date: 6 August 2015