A Cunning Move: Justice in Libya or The Hague?

A rebel raises the new Libyan flag near Bani Walid (Photo: Getty)

Numerous commentators have given their two cents on whether the Tripoli Three – Gaddafi, his son Saif al-Islam and his intelligence chief, Abdullah al-Senussishould be tried in The Hague or in Libya. Predictably, most continue to argue that it is an ‘either or’ situation; that either justice must be served in The Hague or it must be served in Libya. However, a growing number of observers, including influential scholars David Kaye, Kevin Heller, and Stuart Ford, and some less influential ones (see my piece here), have begun to bandy about the idea of an ICC trial in Libya. This is a welcome development. Even if the Tripoli Three don’t end up being tried in Libya by the ICC, the debate has opened up a discussion on the possibility – of the Court being able to travel to where the crimes it investigates were committed and where the victims it purports to work for live.

If we’re honest, most commentators on the subject are privileged: there are no direct, negative repercussions for most of us if Gaddafi is tried in Libya or The Hague. For the people of Libya, however, this may not be the case. For them, the location of justice matters. While it may be problematic, the overwhelming desire to hold Gaddafi to account in Libya, before the eyes of the people whose lives he has terrorized for forty years is completely and utterly understandable.

In this context, I recently came across a largely under-reported quote from interim leader Mustafa Abdul Jalil (see video here):

“The crimes that Gaddafi committed against his people locally before 17 February are enough to bring him to trial for any other crimes he committed after 17 February.

“Libya has not signed the Rome agreement and the ICC’s justice is a complementary justice, as the local judicial system is the one responsible for this.”

Interim Libyan leader Mustafa Jalil (Photo: AP)

The UN Security Council’s Resolution 1970, which referred the situation in Libya to the ICC, instructed the Court that only crimes after February 15, 2011 could be investigated. I have previously argued (here, here and here) that this provision in the referral is a distortion of international law and serves to protect particular Western states from having their very cozy political, military and, at times, criminal relationships with Gaddafi investigated. However, Jalil appears to be using this jurisdictional limit for entirely other means.

In his quote, Jalil is alluding to the possibility of the Libyan transitional government accepting this temporal jurisdiction of the UN Security Council’s referral of Libya to the ICC. Jalil clearly recognizes the temporal limit imposed on the ICC by the Security Council, even if his remarks speak of the more popular day of the Libyan uprising, February 17 2011. However, it appears the National Transitional Council (NTC) is more interested in achieving justice for forty years of dictatorship rather than half a year of brutality. After four decades of an autocratic police state headed by Gaddafi, there is surely no shortage of crimes which could be prosecuted prior to February 2011.

Jalil’s statement is a remarkably cunning political move. By arguing that Libya has the right to try Gaddafi for any crimes he committed prior the the ICC’s involvement in Libya, Jalil skillfully circumvents a show-down with the ICC. The NTC is not outright saying the ICC cannot or should not prosecute Gaddafi. Instead it is making, at least on the surface, a very sensible argument: Gaddafi has committed atrocities for a long time before February 2011 and he should be tried for the crimes he perpetrated against his own people. By making this argument, Jalil and the NTC can also claim that they are seeking a more encompassing justice which covers decades rather than months of injustices.

A Libyan rebel near Bani Walid (Photo: EPA)

How can the ICC respond? The Court cannot come out and say that Libyans should not investigate and prosecute crimes before 2011 – to do so would be to deny Libyan justice. At best, the ICC could try to make the claim that its investigation and prosecution of Gaddafi should be prioritized over any national proceedings. That, however, would be a questionable argument whose legal basis is unclear. Suggesting that the crimes committed after February 15 2011 are worse or more in need of prosecution would seemingly be a non-starter.

While it has grounds to do so, the Court has yet to criticize or comment on the temporal restrictions on its investigation of the Tripoli Three. I argued that the ICC would suffer because the referral shielded key Western states from investigation and it almost certainly will continue to do so. Now, however, the Court may also be shut out of Libya because the temporal limit imposed on it would seem to grant Libya a greater chance to investigate and prosecute crimes committed before February 2011.

Whether justice is best served by holding a trial in Libya or The Hague remains a hotly debated issue. A trial in either location has its benefits. While it is clear that an ICC trial in Libya would retain these advantages, it is increasingly likely that if the Tripoli Three are tried, they will be judged in Libya. Jalil’s strategy, supported by a shift in support amongst key intervening powers from international to Libyan justice, may, in the end, win the day.

The politics of justice are alive and well in Libya.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3). Bookmark the permalink.

2 Responses to A Cunning Move: Justice in Libya or The Hague?

  1. Interesting analysis. But don’t you stil have the problem of the UN SC resolution telling Libya to hand the three over to ICC? Jonathan Birchall

  2. Mark Kersten says:

    Thanks Jonathan.

    It’s a good question. I’m not a lawyer but from what I understand the Resolution doesn’t explicitly tell Libya to hand anyone over. In fact, like the Darfur referral, it includes the phrase: “States not party to the Rome Statute have no obligation under the Statute”. Of course, Libya is not a state party!

    In any case, I think it’s possible to read UNSC Res. 1970 as saying that Libya has an obligation to hand over anyone indicted by the ICC for crimes after February 15th 2011. It’s not obvious that they would be in violation of their obligation if the NTC said something to the effect: “We may decide to hand him over in due time, but he must face justice for the 4 decades of dictatorship first.” I can’t think of a legal basis where the ICC would be able to respond: “No, that’s a violation of international law.” Just as importantly, even if there was an argument that withholding Gaddafi was a violation of Libya’s obligations to the Court, it would be a very questionable political decision to suggest that Libya should not achieve justice for 4 decades of Gaddafi rule.

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