Libya: Local Justice, International Crimes and the ICC

As fighting continued in the Libyan capital Tripoli, the International Criminal Court said on Monday that Luis Moreno-Ocampo, the ICC prosecutor, has been in contact with the country’s Transitional National Council regarding the three top Libyan leaders sought on war crime charges—the besieged Libyan leader Muammar Qaddafi, his son Saif al-Islam Qaddafi, and Abdullah al-Senussi, the former head of Libyan military intelligence.

Mr Ocampo’s office said in a statement that he had been briefed on the security situation in Libya, and that “further conversations will define the precise way to move forward". This would include " the possibility to apprehend and surrender to the Court the three individuals alleged to have committed crimes after 17 of February 2011, and also to investigate and prosecute them in Libya for crimes committed previously.”

Mr Ocampo was quoted as saying: “Crimes in Libya were primarily committed against Libyans. The court issued arrest warrants on 27 of June against three individuals. They are some of the most serious crimes of concern to the international community as a whole. That is why the UN Security Council referred the situation to the International Criminal Court in February 2011.”

Mr Ocampo's statement came after a weekend during which Saif al-Islam Qaddafi was reportedly detained by the rebels (reports which subsequently proved untrue).  So the statement from the ICC prosecutor seems to hint at what could be a point of tension: what if the National Transitional Council declines to transfer to the ICC any of the three suspects, perhaps citing popular demands for local justice?

The mandatory steps that should be taken under international law are relatively clear: the legal obligation is to implement the UN Security Council resolution 1970 and the ICC arrest warrant, which would require the suspects to  be handed over to ICC control by being transferred to The Hague.

The issue of whether it is possible to be try these suspects in Libya is a matter to be raised as part of the preliminary arguments under the pre-trial process before the ICC. ICC law recognizes that in some circumstances, a state may be willing or able to try their suspects at home, and it is open to the legitimate government of Libya to make such arguments before the ICC.

Libya is also required to investigate and prosecute other persons not named in the ICC arrest warrants, according to the concept of complementarity which requires all nations to address international crimes.

The international community has already faced an almost carbon-copy of this dilemma in the case of Sudan (although the main point of distinction being that Libya may demonstrate the will and ability to conduct genuine proceedings against the ICC suspects, whereas in Sudan that may be regarded as doubtful).

As in the case of Libya, the UN Security Council referred the situation in Darfur to the ICC, and as in all council resolutions, states were required to implement the resolution and thus cooperate with the ICC. The ICC then issued an arrest warrant against Omar al-Bashir, Sudan’s president, on charges including genocide.

However, other organs of the UN, in particular the peacekeeping force in Sudan, viewed the execution of this ICC arrest warrant as outside their mandate. There have also been several occasions where States that accepted the ICC’s jurisdiction have failed to arrest Bashir when he was on their territory.

If this precedent is repeated in Libya, it risks establishing a parallel, extra-judicial process. This could pose a serious challenge to the ICC given that the ICC has no police force to implement arrest warrants and thus the ICC relies on the cooperation of states for the transfer of suspects to proceed with trials. It is therefore crucial for the maintaining of international justice that the ICC arrest warrants are implemented through the transfer of the three suspects to The Hague.

7 Comments

The author is wrong on two key legal points.

First, there is no obligation on Libya to hand over anyone indicted by the ICC, the Security Council resolution notwithstanding. The ICC is a consent-based court, built around a treaty that only places obligations on states that have consented to its jurisdiction. The warrants for Gaddafi et al were issued in the absence of this consent, and therefore are not enforceable at law. The Security Council resolution does not alter this situation, as to do so would be to alter the terms of the ICC treaty itself. Neither the Security Council nor any other body have the legal authority to alter the ICC treaty (or any other treaty).

A future declaration under Article 12(3) may grant the ICC jurisdiction in Libya, but the Court presently lacks any enforceable legal authority.

Second, the notion of complementarity, as mentioned above, is not an international obligation to transfer suspects to the ICC. All states have an obligation to investigate/prosecute/prevent certain crimes, genocide being the prime example, but that does not create an obligation to transfer suspects. That obligation only arises if and when the state is either unable or unwilling to prosecute.

Complementarity refers to the relationship between the ICC and local courts. They are meant to 'complement' one another, meaning that local courts have the choice of whether to prosecute or not. If they do so, and do not have a sham trial, then the ICC has no jurisdiction, even if the state (unlike Libya) is a party to the ICC treaty. This is unlike the situation with the tribunals for Yugoslavia and Rwanda, where the ICTY and ICTR have primary jurisdiction over suspects from those two conflicts, and local courts are obligated to transfer suspects if demanded by the tribunal.

Finally, the fact that it might be good for international justice (and this is a highly debatable proposition) to have the Libyan suspects tried at the ICC is not a justification for doing so. It merely instrumentalizes Gaddafi and the Libyan people's demands for justice, placing the preservation of an international organization ahead of the dictates of justice. Recall again Article 17, which repeats the unwilling or unable criteria. It does not mention bolstering the legitimacy of the ICC as a criterion for international prosecution, and for good reason.

The fact that this may lead to a parallel extra-judicial process is to be expected due to the fact that the ICC is a treaty that only some states have agreed to. It is unfortunate that the Court lacks the mandatory powers of a national court, but the fact is the ICC only exists because of limited state consent. One of the unpleasant consequences is that individuals such as Gaddafi and Bashir remain somewhat insulated from ICC prosecution, absent a radical change in their domestic context (as appears to be happening in Libya). Yet the basic principles of international law require that we accept this situation for now, unpalatable as it may be.

Thank you for your comments. Your analysis of complementarity is completely correct and elaborates on my point that complementarity requires Libya to "investigate and prosecute other persons not named in the ICC arrest warrants".

On your point regarding Libya's obligations to implement the ICC arrest warrant, this is built into the UN Security Council Resolution 1970, which was issued under Chapter 7 of the UN Charter, and states clearly in mandatory terms that: “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution" (para. 5). Full cooperation includes the arrest of suspects.

For your final point, the legal process at the ICC provides the opportunity for a range of arguments to be made, including the argument that Libya is willing and able to prosecute the suspects themselves.

Thanks for your reply, which cleared up some of the concerns I had. One question that remains unresolved to me arises from one of those comments, that the Libyan government can make arguments about complementarity at ICC proceedings. Must those arguments necessarily be made after transferring suspects to the ICC? Rule 51 is unclear on this. Do you have any thoughts?

The other is that it is unclear how complementarity creates an obligation to investigate. There may be an obligation to investigate and punish that arises from the terms of specific treaties, especially those treaties that are considered to be part of customary international law. But complementarity itself only creates the obligation where the ICC has jurisdiction, either through state ratification of the Rome Statute or a declaration under Article 12(3). This jurisdictional point, I suppose, is where we disagree - on complementarity and other matters.

There are two reasons why I believe that Resolution 1970 and 1593 are not binding to the extent they purportedly place obligations on Libya and Sudan under the Rome Statute.

(1) The ICC is not a UN body, member state or regional arrangement, and so it is not competent to exercise Chapter VII powers (unlike the ICTY and ICTR). (2) Nor can the UNSC itself bind a non-party state (Libya or Sudan) to a non-UN treaty.

This consent requirement is the basis of treaty law, and is so fundamental as to be customary law. Both treaty and customary law act as limits on the authority of the ICC and the UN (including Chapter VII authority) in this situation.

These are great points, thank you.

With respect to the timing of the potential arguments on admissibility, you are right to point out that Rule 51 explains the kind of information that could be relevant to assessing admissibility. The most pertinent provision regarding your question on timing appears to be Article 19(5) which states that a country which is investigating or prosecuting a case under Article 19(2)(b) must make such a challenge at the “earliest opportunity”.

However, it is also necessary to factor into this timeline the cooperation obligations on Libya imposed by the Security Council. If the suspects are arrested and detained, it remains that Libya must implement its obligations under international law, which includes the cooperation requirements of the UN Security Council Resolution we discussed in our prior exchange. You raise a query regarding the implications of the UN Security Council Resolution 1970 and you are correct to point out that the ICC does not exercise Chapter VII powers itself. However, the ICTR/Y were created according to Chapter VII and thus cooperating with the ICTR/Y is mandated by Chapter VII. This is the same reason why that cooperation with the ICC regarding Libya obligatory, namely, because is mandated under Chapter VII. This therefore overrides the otherwise valid point that generally international law, both treaty and customary law, require an element of State consent.

Regarding your point on complementarity and the obligation to investigate, “positive complementarity” encourages capacity building in national justice systems to enable domestic prosecution of international crimes. Therefore, regardless of the ICC process, calls for local justice still remain pertinent for persons other than the three wanted by the ICC. For the three wanted by the ICC, complementarity is relevant insofar as the Rome Statute provisions on admissibility under Article 17(1) recall paragraph 10 of the Preamble and Article 1 that reference complementarity. Making an argument regarding non-admissibility may in some cases amount to demonstrating specific instances of complementarity, such as under Article 19(2)(b).

Thank your for your illumination of the complementarity process, it was very helpful.

I'm afraid I still disagree on the more fundamental point of whether or not Libya has an obligation to cooperate with the ICC. In response to your point about the ICC receiving a Chapter VII mandate such that it is comparable to the ICTY/ICTR, I would say that the ICC is not competent to be mandated in this way. The ICC cannot receive Chapter VII powers (as it is not a UN body, member state, or recognized regional arrangement), nor can it be bound by the UN (because it is not a UN body). More importantly, as the ICC is not a UN body, the Security Council cannot create an obligation for Libya to cooperate with the Court.

I'll leave it at that, not because I think this is a resoundingly persuasive point, but because (1) the lack of clarity from the ICC about the nature of the referral mechanism (despite prodding from the AU) makes a definitive answer difficult to provide, and (2) with respect to Libya at least, the discussion is likely moot at this point anyway.

Thanks for indulging me,

Asad

Thanks Asad - does it help your thinking if we present the issue in terms of the obligation on Members of the UN to comply with Security Council Resolutions under Chapter VII? That way, Libya (as a Member of the UN) is bound to implement the Resolution 1970 direction to "cooperate fully" with the Court.

I don't think it helps much, although I understand why the argument is made. If the ICC were a UN body, then yes, it would resolve the issue, as it does with the ICTY/ICTR. In this case though, the Security Council is acting ultra vires when it places an obligation to cooperate with the ICC on a UN member state that is not party to the Rome Statute.

To say there is an obligation to "cooperate fully" with the Court is to say that you are bound to the Rome Statute. All that amounts to is a circumvention of the rules of treaty law, which otherwise act as one of the limits on Security Council action (in two ways - first, as codified rules (I highly doubt that the Vienna Convention is one of the treaties overridden by Art. 103 of the Charter); second, as rules of customary international law).

Anyway, I look forward to seeing how this all plays out now that it seems a new government will be formed in Libya.

Cheers,

AK

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