JURIST Guest Columnist D. Wes Rist of the University of Pittsburgh School of Law says that any attempt to extend the reach of the International Criminal Court into areas it was not created to address runs the risk of weakening its overall authority and the willingness of member states to comply with its orders…

In the middle of ongoing conflict in Libya, when no one was sure whether Colonel Muammar Gaddafi could be stopped, let alone whether or not he could be held accountable for alleged war crimes, the International Criminal Court (ICC) issued an arrest warrant for Saif al-Islam Gaddafi, Colonel Gaddafi’s second son, who was an extremely recognizable figure in the Gaddafi regime. The Office of the Prosecutor, acting under the authority granted to it by Article 13 of the Rome Statute, triggered by UN Security Council Resolution 1970, had requested an arrest warrant for Colonel Gaddafi and Saif. The ICC’s Pre-Trial Chamber I granted [PDF] the request on June 27, 2011, finding that there was sufficient evidence of the “alleged criminal responsibility for the commission of murder and persecution of civilians as crimes against humanity from 15 February 2011 onwards throughout Libya in, inter alia, Tripoli, Benghazi, and Misrata, through the Libyan State apparatus and Security Forces, in violation of article 7(l)(a) and (h) of the [Rome] Statute.” What has happened since then has been a complicated tangle of domestic and international criminal law, public international law, media misrepresentation, and simple confusion.

Fast forward several months to the fall of the Gaddafi regime and his death in October. In late November, Saif was captured during an alleged attempt to flee into neighboring Niger and was returned to the custody of the Libyan National Transition Council (NTC), the interim body currently responsible for the creation of a new Libyan government. And from that point on, the headaches at the ICC offices in The Hague began. Members of the military unit that captured Saif, in speaking to western media, had already begun proclaiming that Saif would be returned to the NTC “to face trial.” Chief Prosecutor Luis Moreno Ocampo, after visiting Libya to speak with NTC officials about Saif’s status, reported to the Pre-Trial Chamber that the “Libyan authorities do not intend to transfer Mr. Gaddafi to the ICC at this point in time.” During this visit, the Prosecutor received a letter from the NTC chairman, Mustafa Abdul Jalil, expressing Libya’s intent to invoke Article 94 of the Rome Statute, which allows nations to postpone compliance with an ICC request in order to pursue their own investigation or prosecution. This, of course, invokes the dreaded specter of complementarity, which plagues much of the ICC’s involvement with referred cases. In a nutshell, the doctrine of complementarity requires that the ICC may only step in to remove the inherent right of a state to prosecute its own offenders if the state is “unwilling or unable genuinely to carry out the investigation or prosecution.”

To add to the confusion, Office of Public Counsel for the Defence (OPCD) requested involvement in the Saif case, alleging the need to step in to protect the rights of Saif even before proceedings had begun at the ICC. The Office of the Prosecutor and the OPCD traded filings before the Pre-Trial Chamber on a series of issues, including whether the Prosecutor had complied with his obligations to require the Libyan NTC to turn over Saif or challenge the admissibility of the case under Article 94. In addition, the Pre-Trial Chamber indicated that it had received a confidential submission to the ICC indicating that Saif was being held without access to a lawyer and that there were individuals seeking to represent him in proceedings before the ICC. The Pre-Trial Chamber also requested specific information from the Libyan NTC concerning the status of Saif, especially regarding his arrest, given that it makes a very significant difference whether Saif was arrested by Libyan forces because of the outstanding ICC arrest warrant or whether he was arrested because of the allegations (for the same crimes against humanity, as well as unrelated fraud and embezzlement charges) the Libyan NTC has filed against him. The NTC sought and obtained an extension on that deadline until January 23, 2012, and submitted their report to the ICC Registry, but made the report confidential. The Pre-Trial Chamber has requested that the Office of the Prosecutor and the OPCD submit their filings on the Libyan letter by February 2, 2012.

While all of this boring, technical, procedurally correct filing was going on, the media was desperately looking for news stories about Libya and the ICC to publish. Saif’s case was an easy headline, since political figures in Libya and proponents of the ICC were both drawing battle lines in the sand about whether or not Saif should, could, or would be tried in Libya before facing any pending ICC charges. In an odd twist, Saif’s sister, Aisha Gaddafi, is publicly advocating that Saif should be tried by the ICC, since, she alleges, it will be impossible for him to receive a fair trial in Libya. Libyan advocates are vigorously arguing that Libya needs to proceed with Saif’s trial on its own in order to obtain real, observable, justice in the country, an assertion that many international criminal tribunals have had to deal with, given their tendency to remove the accused from any kind of territorial proximity to the commission of the alleged crimes. So let me do my best to lay out what the actual standards of law here are.

First, The ICC is, without a doubt, acting properly under Article 13 of the Rome Statute and UN Security Council Resolution 1970 to open an investigation and issue arrest warrants in the Situation in Libya. No one is seriously disputing this. Yes, it is true that Libya has not ratified the Rome Statute, but Article 13 is specifically designed to address that gap and has been applied correctly.

Second, Libya does have an inherent right to prosecute its own citizens for crimes committed on its territory against its people. This goes to the heart of what it means to be a sovereign nation and it is impossible to deny Libya this right without also denying it any legitimacy in the governance of its own territory, the eventual legitimacy of the successor government, and the status of the NTC in the eyes of the international community. One of the most basic elements of the tests applied to determine whether a government is actually in control of its territory is the government’s ability to exercise jurisdiction over those who commit criminal acts.

Third, the ICC has the right to proceed concurrently with its own investigation and prosecution up until such time as the Libyan government notifies it that it intends to proceed with a domestic investigation and/or prosecution of Saif on charges significantly related to the charges detailed by the ICC in its arrest warrant. If, for example, the Libyan government decides to pursue prosecution against Saif solely on the fraud and embezzlement charges, the ICC’s outstanding arrest warrants for Saif would still be valid and the proceedings against him could continue.

Fourth, Saif has the right to have access to a lawyer, regardless of domestic Libyan criminal law, because of his pending case before the ICC. Libya owes Saif access to all of the procedural and substantive fair trial rights, regardless of which venue he is prosecuted in. However, specifically related to the ICC proceedings, Saif has the right to have access to a lawyer and have his lawyer make submissions on his behalf as the ICC addresses the issues relating to the proper determination of the case against him. On Monday, January 30, 2012, the Pre-Trial Chamber received an amicus curiae brief from an Iranian-American human rights lawyer, Mishana Hosseinioun, alleging that Saif is being held without access to visitors or legal counsel. Without getting into all of the international human rights law standards that apply to Libya’s actions should it decide to pursue domestic proceedings against Saif, the ICC has the right to require Libya to provide Saif with access to a lawyer so that he may be adequately represented in front of the Pre-Trial Chamber.

Finally, if Libya decides to pursue an actual criminal proceeding against Saif on grounds significantly related to the charges that serve as the basis for the arrest warrant issued by the ICC, then the only remaining question for the ICC to consider falls under an Article 17 determination of whether or not Libya is “unwilling or unable genuinely to carry out the investigation or prosecution.” Unlike what some ICC advocates are alleging, it is not the ICC’s job or place to determine whether or not Libya can offer Saif a fair trial. The ICC has an obligation under the Rome Statute to ensure that any proceedings that it carries out are reflective of fair trial principles. However, the ICC has no jurisdiction to review the ability of the Libyan government to conduct a fair trial. Since, in the above scenario, we know that the Libyan government would be willing to carry out an investigation or prosecution, the only question would be if the Pre-Trial Chamber considers it “able” to provide a genuine process. This ability of the ICC to circumvent a domestic process is intended to allow it to exercise jurisdiction where the domestic state may have technically initiated an investigation or prosecution but that process was obviously skewed to deny the victims of the alleged crime justice. In other words, if the trial is a sham that is intended to whitewash the defendant of any wrongdoing, the ICC can ignore the domestic process and proceed with its own investigation and trial. Importantly, the intent behind Article 17 is not to give the ICC the right to declare that a domestic court’s procedures are not sufficiently reflective of international human rights standards. While that is a goal all advocates of international justice should be promoting, the ICC is not the proper venue to pursue it. The International Criminal Court was created for a very specific reason. Any attempt extend the reach of the ICC into areas it was not created to address runs the risk of weakening the overall authority of the Court and the willingness of member states to comply with ICC orders.

Much of this confusion and conflict surrounding the Saif al-Islam case is reflective of a recurring problem among international accountability advocates. We often react so strongly to the ideal of ending impunity for serious international crimes that we forget that the ultimate goal of international criminal law should be for The Hague to just be a nice place to visit, instead of the home of the majority of international criminal law prosecutions. Ultimately, international criminal law will be found to have succeeded not when the ICC prosecutes every violation of the Rome Statute, but instead when nation states respond forcefully to such violations within their own systems and obviate the need for ICC action by addressing these crimes domestically. Until that day happens, we will continue to fight vigorously for the appropriate use of bodies like the International Criminal Court. But we must be careful that our vigor does not overshadow the need to foster domestic compliance. The ICC has the chance to work with the Libyan government in the trial of Saif al-Islam Gaddafi and strengthen the growing patchwork of nations willing to hold individuals accountable for serious international criminal violations. Hopefully, both the ICC and Libya can benefit from this situation, while ensuring that the Libyan population sees justice done.

D. Wes Rist is an Adjunct Professor of Law and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He earned an LL.M. with Distinction in International Human Rights Law from the University of the West of England Bristol Law School. Rist was a member of JURIST’s staff from 2004-2006, serving as JURIST’s International Law Editor from 2005-2006.

Suggested citation: D. Wes Rist, Headaches at the Hague: The Trial of Saif al-Islam Gaddafi, JURIST – Forum, Feb. 1, 2012, http://jurist.org/forum/2012/02/wes-rist-saif-gaddafi.php.