Options on the Table: A Hybrid Tribunal to Prosecute ISIL fighters

Amr Jomaa joins JiC for this post on the possible means to prosecute Islamic State fighters for international crimes. Amr a Project Officer for the MENA division at the Centre for Humanitarian Dialogue, specializing in international human rights and transitional justice issues.

Iraqi special forces conduct identity checks in search Daesh fighters in Mosul, Iraq, in 2017 (Photo: Reuters)

Achieving accountability for crimes committed by ISIL fighters and their accomplices seems like an arduous task. Many believe that the seven thousand detained individuals, nationals of 81 different countries, are not deserving of a trial. Those who do believe in due process seem bewildered on how best to attain justice. To date, the preferred solution has been to kick the can down the road and leave suspected fighters and those authorities detaining them to their fate. The solution seems limited, if not outright dangerous. Absent realistic and legally sound solutions, ISIL fighters might be gradually released from the Syrian Democratic Forces (SDF) prisons and participate in the resurgence of the Caliphate, a development recently noted by the Pentagon.

On 3 June 2019, the Swedish Ministry of Foreign Affairs convened a meeting to discuss matters of accountability for crimes committed in Syria and Iraq. Even though the meeting was inconclusive, the Swedish proposal to create a hybrid tribunal, a court that mixes both national and international elements – such as applicable law – to prosecute fighters has definite merits: it would allow a unified, streamlined process to investigate crimes committed by ISIL. Doing something is a necessity given US-backed forces holding the fighters warned they lack resources to prosecute and detain suspects indefinitely. However, there are still many obstacles impeding the creation of the court.

Determining the geographical location of the tribunal, which would directly affect the applicable laws and the nationality of the judges sitting on the bench, remains among the most significant point of contention. The tribunal should be hosted in Syria or Iraq, parts of which were previously considered territories of the so-called Caliphate. Domestic law, political interests, and questionable human rights practices might nonetheless get in the way of creating the court.

As Article 22 of the Iraqi Criminal Code proscribes the death penalty for “political crimes”, Article 21 excludes terrorist offences from this category, to allow indicted terrorists to receive the death penalty. The consensus among donor states is in rhetorical opposition to the death penalty as recently stated by French Minister of Foreign Affairs Jean-Yves le Drian who confirmed that France opposes the death penalty “in all places and at all times”. Additionally, compliance with due process of law in Iraqi courts in cases relating to ISIL fighters is questionable. Zeid Raad al-Hussain, at the time UN High Commissioner for Human Rights “expressed serious concerns at the creation of a committee tasked with making recommendations to accelerate implementation of death sentences in Iraq”.

Moreover, many donor states that would be instrumental in the creation of a hybrid court do not recognize the Syrian Government as the legitimate representative of the Syrian people.  Notwithstanding the significant allegations of violation of human rights in Syrian Government courts and prisons, which would preclude the creation of a hybrid court in government held-areas. France recognized the Syrian National Council “as the legitimate interlocutor” on 21 November 2011. Likewise, the United Kingdom’s Foreign Secretary William Hague declared that the “Assad Regime […] lost its legitimacy in the eyes of the wider world”. Absent recognition, states are unlikely to allow for any form of cooperation with the Syrian Government as long as it is under current president Bashar al-Assad. The creation of a hybrid tribunal requires, as a sine qua noncondition, at least some association with the host-state. Furthermore, legal systems in both Iraq and Syria are ill-prepared to host a hybrid court as both central governments remain hostile to the idea of accountability, even more so when it is internationalized.

The recently issued Dakar guidelineshighlight the need for personalizing the hybrid court to the conflict that gave rise to the contentious crimes. To do so, a hybrid tribunal would need to absorb the political sensitivities of both Iraq and Syria, a discouraging task. For example, a difficulty would arise if the Syrian Kurdish “Autonomous Administration” was to host the court. States hostile to Kurdish autonomy such as Turkey, a NATO member, could read the establishment of the court in northeast Syria as a step towards recognition by donor states of Kurdish independence. If it loses the territory it controls, for example, it would greatly hinder the functioning of the court, which needs to operate in a relatively stable environment. Continue reading

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Posted in Guest Posts, International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Islamic State, Syria | 3 Comments

Hi Venezuela, You’ve Reached the ICC. Can We Put You on Hold?

This article was originally published at CEPAZ, where a number of other posts on Venezuela and international criminal justice will be published over the coming days. The post is also available in Spanish here

A demonstrator rests during protests against the government of Nicolas Maduro (Photo: BBC)

In September 2018, six states – Argentina, Canada, Chile, Colombia, Paraguay, and Peru – jointly referred the situation in Venezuela to the International Criminal Court (ICC). Their decision to ask the ICC to investigate alleged crimes against humanity committed by the regime of Nicolás Maduro was unprecedented. Never before had states pooled their power and influence in order to issue a multi-lateral referral to the Court. Observers of the ICC and those affected by violence in the country could be forgiven for thinking that the joint referral would lead to swift action by the Prosecutor of the ICC. An investigation into Venezuela seems as likely to be opened next week as in ten years – or perhaps even never at all. The timing of events at the Court is unpredictable. But that may soon change.

Why the Joint Referral?

Seven months prior to the joint referral, the ICC Prosecutor had launched a preliminary examination into the situation in Venezuela. The country is a state party to the ICC and, despite purportedly being in the Court’s crosshairs, has not intimated any interest in withdrawing its membership. Any alleged international crimes being committed in Venezuela are therefore fair game for the ICC; they fall under the Court’s jurisdiction. One might then ask: what was the added value if the situation in Venezuela was already being examined?

Firstly, the referral obviated any need by the Prosecutor to seek the approval of judges to open an official investigation. This removed a legal obstacle that would, invariably, delay the opening of any investigation by at least the few months it takes ICC Judges to decide on such matters.

Second, the coalition’s referral was a demonstration of multilateral interest in an ICC investigation and an act of political support for such an outcome. As Nicholas Ortiz opines, “the referral does bolster the work of the Prosecutor by demonstrating that there is political will towards addressing the situation of Venezuela at the Court (…) It gives the Prosecutor, in the long term, the ability to expedite the opening of an investigation.”

Notably, investigations are opened much more quickly into situations that have been referred to the ICC by states (or the United Nations Security Council) than those that are opened proprio motu – upon the Prosecutor’s own volition. In theory at least, the referral should therefore have spurred action by the ICC Prosecutor to move towards an official investigation while raising the costs of dithering or not doing so. As Daniel Marín López and Aaron Acosta write, it should provide the ICC with an “undisputable opportunity to investigate grave crimes in Venezuela”.

Of course, we cannot discard the possibility that the referring states were more interested in the political ramifications of an ICC referral than the consequences of an investigations. Their actions may have been borne more of a desire to put pressure on the Maduro government than a conviction about the utility of an ICC investigation. But for all intents and purposes, the joint referral communicated political interest in an official investigation and removed a legal obstacle to doing so. The real impact of the referral was therefore to speed up the timeline of decision-making, to spur on the preliminary examination, and to galvanize an investigation.

It has been almost a year since those six states jointly referred the situation in Venezuela to the ICC. And yet, Venezuelans wait. The coalition of states that referred the situation to the ICC wait. Observers of the Court wait. We all wait.

The Gears of Justice Grind Slow – And Patience is Wearing Thin

It is not so much that the ICC is slow, although that has been a common critique levied against the institution; the real problem is that there appears to be little-to-no coherency to the timing and duration of decisions at the Court. Be it the Office of the Prosecutor requesting to open investigations or issue warrants or Judges deciding whether or not to grant such requests (hello, Afghanistan!), there is no apparent logic to why the organs of the ICC do what they do or when they do it. Sometimes things move deftly. At other times, decision-making seems glacial. This unpredictability could plausibly be strategic– but there is no indication that this is the case.

For the better part of its existence, the ICC could point to ‘growing pains’ for the lack of efficiency or the seemingly ad hoc manner in which many decisions were made. Many of the decisions that the ICC had to make were being made for the first time by any international tribunal. The leash was fairly – and rightly – quite long. But with a string of stinging prosecutorial defeats in the courtroom, protracted decision-making on cases like Afghanistan, poor crisis and communication management in response to states opposed to the Court, self-defeating and tone-deaf moves such as the Court’s own President suing the institution, and concerns about the quality of staff, state patience is running thin. Just a year ago, the United Kingdom – whose conduct in Iraq is under preliminary examination – declared that some investigations and examinations “are as old as the Court itself. This situation is not sustainable.”

Most member-states of the ICC, including the ICC, remain committed. But they want more bang for their buck – and a better return on their moral and political investment in the Court. One area they are increasingly homing in on is preliminary examinations. Continue reading

Posted in Argentina, Brazil, Canada, Colombia, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Paraguay, Peru, Preliminary Examinations, Venezuela | 1 Comment

Pandora’s Box: What, if anything, can the ICC do for Libya?

The following is Mark Kersten’s contribution to the ongoing symposium on Libya and International Justice. All other posts in this symposium, put together with Opinio Juris, are available here

A member of the Libyan Coast Guard stands amongst migrants after picking them up off the coast of Libya (Photo: CNN)

In the midst of Libya’s uprising and civil war, Idriss Déby issued a stern warning: “beware of opening Pandora’s box”. As Alex de Waal has explained, the Chadian president’s words of caution were the result of concerns over the repercussions of a destabilized Libya. Today, some eight years after the Arab Spring, Libyan civil war, and the concomitant demise of the regime of Muammar Gaddafi, Pandora’s box is wide open in Libya. While it may be foolhardy to compare the crimes of 2011 to those perpetrated since, the years following the Libyan civil war have been stained by severe bouts of violence, a humanitarian tragedy off the shores of the country, the virulent spread of human trafficking and associated crimes, and virtually full-fledged impunity for all of the above. Is there a place for the International Criminal Court (ICC) in all of this?

It is not uncommon to hear calls for the ICC to intervene further in Libya. Dozens of organizations, lawyers, and NGOs regularly implore the Court to investigate ongoing violence in Libya. The latest comes from the UN Mission in Libya (UNSMIL), which suggestedthat recent attacks on Tripoli’s Mitiga airport as well as related unrest should be probed by the ICC. Others have called on various specific actors to be investigated, including Khalifa Haftarfor atrocities committed his self-styled Libyan National Army (LNA) as well as the European Union for its alleged rolein crimes against humanity committed against migrants seeking refuge in Europe (EU) via the Mediterranean.

The ICC is already active in Libya and has been since 2011 when the United Nations Security Council referredthe situation there to the Court. The Office of the Prosecutor has taken the view that that the original referral by the Council means that the Court continues to have jurisdiction over Libya (and therefore that it was not limited to the 2011 civil war and its immediate aftermath). In 2011, the ICC issued three warrants: for Gaddafi, his son Saif al-Islam Gaddaif, and Abdullah al-Senussi. ICC chief Prosecutor Fatou Bensouda has also issued arrest warrants since 2011, including one against Mahmoud al-Werfalli for the extra-judicial murders of LNA prisoners – which were filmed and disseminated on social media.

If measured by the achievement of justice in Libya, The Hague, or frankly anywhere, the ICC’s record in Libya looks bleak. No warrant issued by the Court has been enforced. Abdullah al-Senussi and Saif al-Islam Gaddafi (via video) were prosecuted in Tripoli and sentenced to death, but their prosecutions are widely seen as a farce, with neither enjoying anything close to due process. Regardless of this reality, ICC judges determined in 2013 and 2014 that the case against al-Senussi was inadmissible. Despite calls to revisit this ruling – something that the ICC Prosecutor can request – this has not been done. The whereabouts of Saif is the subject of intense speculation. Some reportssay he is preparing to run for the country’s presidency, but there have been no confirmed public sightings of him in at least three years. Al-Werfalli and another individual indicted by the ICC, Al-Tuhamy Mohamed Khaled, Muammar Gaddafi’s former security chief, remains at large.

The apparent impotency of the ICC to achieve accountability for international crimes or to deter their commission has not stifled calls for additional and increased ICC activity. So, what, if anything, can be hoped for from the Court in Libya?

For individuals like al-Werfalli and Khaftar, the likelihood of the ICC affecting their behaviour is low. This should be clear from the fact that not only did Werfalli and his henchmen disseminate their crimes on social media, but they have done so since, resulting in a second warrant being issued. Despite periodic suggestions that Werfalli would be detained and investigated by the LNA, this has not transpired; on the contrary, his temporary detention in early 2018 provoked an outpouringof protest from his supporters and his release without charge. Only if and when Werfalli falls out with Haftar and only and if and when Haftar views The Hague, rather than the gallows, as his preferred destination for Werfalli, will the ICC get its man.

With respect to the European Union, the ICC may have a chance to affect the EU’s behaviour and undermine the deprave “deterrence” policies. Those policies contribute to thousands of migrants perishing and those who are herded back to Libya being subject to horrendous abuse, including torture, sexual and gender-based violence, human trafficking, and enslavement. The bombing on the Tajoura migrant camp, which some viewas the “consequence” of Libya’s and the EU’s migration policies, should only galvanize scrutiny of Brussels’ policies. There is a general sense that the behaviour of wanton militias and bodies like the Libyan Coast Guard won’t be affected unless the policies of the EU change first. Continue reading

Posted in Al-Tuhamy Mohamed Khaled, European Union (EU), International Criminal Court (ICC), International Criminal Justice, Libya, Libya and International Justice Symposium, Libya and the ICC, Libyan National Army, Mahmoud al-Werfalli | Leave a comment

Lost Justice: Across the Libyan desert, Shores and Depths of Central Mediterranean

Salah Marghani joins us for this contribution to the ongoing symposium on Libya and International Justice. Salah is a lawyer and human rights activist. From November 2012 – August 2014, he was Libya’s Minister of Justice. His efforts for justice and accountability were recognized by Human Rights Watch in 2012, which awarded him with the prestigious “Alison des Forges” Human Rights Defender Award. Make sure to check out HRW’s Hanan Salah’s piece over at Opinio Juris today as well.

Migrants struggle as a boat capsizes in the Mediterranean (Photo: CNN)

It was seemingly innocuous. On 2 February 2017, the Italian Government, supported by EU, prompted a Libyan UN-proclaimed Presidential Council or (GNA)[1], to sign a vaguely albeit smartly worded memorandum of understanding (MOU).[2] The clear objective of the MOU was to stem the flow of refugees and migrants across the Libyan sea frontier towards Italian shores. Under the cover of the MOU and on 26 July 26th2017, GNA leader Faiz Assarraj signed and presented to the Italian Premier in Rome a letter inviting the Italian Navy to enter Libyan territorial waters and to station elements in the seaport of Tripoli, with the declared aim to jointly patrol the Libyan waters to catch and return fleeing migrants.

By the end of 2017, in an almost unbelievable move, fiercely defended by the EU, the poorly equipped Libyan Port and Maritime Transport Authority claimed and notified the International Maritime Organisation (IMO) of a vastly extended exclusive Libyan Search and Rescue (SAR) region. The zone extended 76 Nautical Miles deep into the Central Mediterranean. The SAR declaration was clearly unjustified and in total disregard to endangered fleeing refugees and migrants afloat at sea. Smartly disguised in an innocent format, it was also patently in breach of humanitarian values. Libya is a country with almost no navy or real coast guard, a country enduring an ongoing civil war, with fractured governments and forces violently competing for power and wealth. Libya could hardly meet its obligations in such a huge SAR area, one which far exceeds the depths assigned to the real and fully equipped navies of Italy and Europe. Italy and EU went as far as calling off vital SAR operations under (Sofia) in the Central Mediterranean and assigning the same to the infamous Libyan Coast Guard.

The Assarraj Government and Coast Guard was directed by the Italians and the EU to confront International NGOs working to save the lives of refugees and migrants or who were taking them to safe ports. There were many incidents where lifesaving operations by NGO vessels were confronted and prevented from doing their work. Such harassment impeded NGOs, including MSF, Sea Watch and others. In some instances, refugees lost their lives as a result.

Lack of morality and illegalities

Italian Interior Minister (at the time) Matteo Salvini ordered the closure of all Italian seaports to all rescue vessels, causing havoc and many casualties. The Italian government, followed by Malta and other rather distant EU countries and aided by the Assarraj Government, are blocking the efforts of rendering assistance in total disregard to the safety of the lives of refugees and migrants as well as in breach of spirit of Article 98 UNCLOSand the SAR Convention. The Libyan Coast Guard, practically, directed by Italy under the current arrangement, are not only pushing for the disembarkation of any refugees fished at Libya Vast SAR region to unsafe Libyan ports where they are handed back to their original captors , it has effectively closed or severely impeded such disembarkation chances  to other safe ports in the region. Continue reading

Posted in European Union (EU), Libya, Libya and International Justice Symposium, Libya and the ICC, Migration | 1 Comment

The Quest for Accountability in Libya: A Pressing but Neglected Concern

Kate Vigneswaran and and Vito Todeschini join JiC for their contribution to our ongoing joint symposium with Opinio Juris on Libya and International Justice. Kate is a Senior Legal Adviser, International Commission of Jurists, MENA Programme and Vito is an Associate Legal Adviser, International Commission of Jurists, MENA Programme. Links to all of the previous posts can be found here.

The trial of former members of the Gaddafi regime has sparked with concern about the integrity and fairness of Libya’s justice system (Photo: Ismail Zitouny / Reuters)

Accountability is typically absent from many discussions on Libya, despite the prevalence of gross human rights violations and crimes being committed on a widespread scale. Persistent political instability, resurgence of armed conflict and migrant “crisis” in Europe continue to obfuscate the urgent need to tackle past and ongoing human rights violations and abuses in the country.

The latest UN Human Rights Council (HRC) resolution on Libya on 22 March 2019, which preceded the outbreak of hostilities in April 2019, called on the Libyan authorities to “increase efforts to hold those responsible for crimes accountable.”This resolution is based on an apparent assumption that the Libyan criminal justice system can and does function effectively andis in a position to investigate, prosecute and provide remedies and reparation for crimes under international law committed in Libya. States and the International Criminal Court (ICC) also act based on a similar assumption or assessment. Indeed, the significant challenges impacting the fair administration of justice in Libya did not prevent the ICC from concluding that Libya had primary jurisdiction over Abdullah Al-Senussi, or States from engaging with Libyan authorities on issues related to the management of movement of migrants and refugees across Libya and to Europe.

As the International Commission of Jurists (ICJ) finds in its new report on the criminal justice system in Libya, such assumptions are unfounded. Simply put, the Libyan accountability framework is profoundly inadequate.

Despite a somewhat unified judiciary, in which judges and prosecutors operate under the authority of a single Supreme Judicial Council and apply the same Penal Code and Code of Criminal Procedure, current hostilities, insecurity and fragmentation in executive and legislative bodies mean accountability is unlikely to be achieved any time soon.

Courts are effectively non-functional in numerous places, with justice actors facing continuing intimidation, death threats and other forms of violence, in particular by non-state actors. As a result, there have been very few investigations and prosecutions of crimes under international law in Libya following the toppling of Gadhafi. In the very handful of cases that have been investigated and prosecuted, serious human rights violations have occurred, including violations of basic fair trial rights.

The case against 37 former Gadhafi-era officials, including Muammar Gadhafi’s son Saif Al-Islam and the former head of the intelligence service Abdallah Al-Senussi, both indicted by the ICC, is paradigmatic. The ICJ was able to obtain a copy of the judgement in the case, not yet made public despite being issued in 2015, which supports the findings by the United Nations Support Mission in Libya and the Office of the High Commissioner for Human Rights that the rights to liberty and a fair trial were violated. Many defendants were detained for up to two years without access to counsel or an independent judicial authority or being charged, and violations of the right to be tried in one’s presence, to a public hearing, to call and examine witnesses, and to be represented by a counsel occurred, impacting their ability to defend themselves effectively. For example, the accused were not permitted to examine Prosecution witnesses and were limited to two defence witnesses at trial. The Prosecutor and Court failed to investigate allegations of torture and ill-treatment; rather, information including statements of “confession” allegedly extracted through torture or other forms of coercion were admitted as evidence at trial. Continue reading

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It is More Dangerous than Ever: Chaos and Vigilante Justice in Libya

Marieke Wierda joins JiC for this post, part of our ongoing joint symposium with Opinio Juris on Libya and International Justice. Dr. Wierda is the rule of law advisor at the Dutch Ministry of Foreign Affairs and ex-Transitional Justice Advisor to UNSMIL (2011-2015).  This blog is written in her personal capacity. Earlier today, Mary Fitzerald’s contribution to the symposium was published at OJ. Be sure to check it out!

Migrants sit outside of the Tajoura detention camp following an airstrike by militants (Photo: Reuters)

Libya has always been a dangerous place for migrants and refugees. They are often at the mercy of ruthless human traffickers, militias who trade them for money, or abusive state authorities who detain them indefinitely. Now it is more dangerous than ever. On 3 July, an airstrike hit a migrant center in Tajoura, killing 53 and injuring another 150, many of them women and children. The UN’s Libya envoy, Ghassan Salame, called the attack a war crime.  In the current chaos, those most vulnerable, such as migrants and refugees, are the first to suffer.

The response of the Security Council to the airstrike is illustrative of how difficult it has been to pursue accountability in the Libyan context. The Council condemned the attack but did not attribute it to any side. The international community remains deeply divided on Libya, and this complicates any efforts to call any of the parties to account for their actions.

It was not always this way. During the Revolution in 2011, the Security Council unanimously adopted Resolution 1970, which sought to protect civilians and to refer the situation to the International Criminal Court. The Resolution also enabled international armed intervention in Libya and eventually helped the revolutionaries to prevail against the regime of Muammar Qadhafi.

The demand for justice was there from the outset and helped to drive the Revolution.  Protests from the victims of the Abu Slim massacre in 1996 are what sparked the uprising against Qadhafi. Within two days, over 1,200 prisoners of the infamous prison in Tripoli were mowed down with machine guns. Family members were not informed about their deaths until 2008.  The Abu Slim massacre was a hallmark of the repressive nature of the Qadhafi regime and inspired the country’s opposition to rise against Qadhafi in 2011.

When they prevailed, the victory of the revolutionaries quickly seemed complete. In October, Qadhafi himself was captured alive near Sirte. Qadhafi was then tortured and killed. In the aftermath of the killing, around 65 bodies were found executed near the Mahari hotel, civilians mixed with members of Qadhafi’s close protection unit. No one was held to account. Continue reading

Posted in Libya, Libya and International Justice Symposium, Libya and the ICC, Libyan National Army | Tagged | Leave a comment

Libya and International Justice: A Symposium

Libya and International Justice: A joint JiC and Opinio Juris Symposium

It isn’t for a lack of attention. Violence in Libya is covered almost daily in major newspapers and media outlets. Attacks on migrant camps, wanton executions of political prisoners (filmed a disseminated on social media), the thousands of refugees and asylum seekers perishing in the Mediterranean, and other acts of barbarity and violence, are widely known. Dozens of reports have been published on the subject, highlighting high levels of criminality, a widespread culture of impunity for international crimes, and a lack of recourse for those who seek accountability.

Yet there is no justice for these atrocities. There is no accountability for atrocities and human rights violations committed in Libya.

This status quo has resulted in the deaths and abuse of thousands of civilians. Many have demanded action and an end to impunity. But how can this be achieved? What options for justice and accountability are available and which would most appropriately address atrocities of the past and those that continue to be perpetrated?

Over the next week, JiC and Opinio Juris will host a symposium that delves into these questions and sheds light on ongoing atrocities and political violence waged in Libya. Contributors will outline why Libya finds itself in the violent political quagmire that it is in today. Options for justice that will explored include the creation of an independent investigative mechanism, additional action by the International Criminal Court (ICC) in the country, and political accountability for those entities and states that support actors on the ground known to commit international and transnational organized crimes. The pieces will explore what Libyan groups and factions as well as the international community can do to address injustices and how justice and accountability need to be prioritized if a sustainable solution to ongoing conflict in Libya is to be found.

Expert contributors to the symposium include:

Some posts will be available at both JiC and Opinio Juris, but the majority of the pieces will be posted at one or the other, so make sure to check in at both.

Of course, and as always, please do share your thoughts and views in the comment sections of the blog, on Twitter, or any other social media you use.

Posted in Libya, Libya and International Justice Symposium, Libya and the ICC, Symposium | 1 Comment