The battle between Libya and the International Criminal Court (ICC) over where Abdullah al-Senussi and Saif al-Islam Gaddafi should be tried has taken another dramatic turn.
Saif’s legal representative John Jones has written a scathing letter to the UK’s Foreign Secretary William Hague in which he decried what he views as Britain’s hypocrisy in selectively promoting international justice:
“You cannot plausibly claim to be a champion of international humanitarian law while turning a blind eye to Libya’s faults… Libya is defying the ICC’s order to hand over Saif. The foreign secretary needs to demonstrate Britain’s backing for the court.”
At the same time, Ben Emmerson and the team of lawyers representing Abdullah al-Senussi have requested that ICC judges refer Libya to the Security Council over fears that a planned trial of Senussi in Libya “will be nothing more than sham justice, the old-fashioned show trial”.
As I have previously argued, the Security Council has completely shirked its responsibility in assuring that justice is achieved in Libya. When the Revolution began in February 2011, the P3 (the US, France and the UK) calculated that it would be useful to get the ICC involved. The Court’s intervention helped to further isolate and delegitimize Gaddafi, stigmatized him with the label “international criminal” and, in so doing, laid the grounds for a military intervention that could framed as being primarily about serving justice and removing an illegitimate, criminal leader. Seeing an opportunity to capture international attention, the ICC went along with the show. Controversially, the Security Council gave the cash-strapped Court no funding, prevented it from investigating any alleged crimes before 15 February 2011, and ensured that no citizens of states that weren’t members of the ICC could be prosecuted. At the time, the Court and its most fervent supporters didn’t seem to mind. If they did, they certainly didn’t make a fuss.
The Security Council’s interest in Libya quickly waned. Before the civil war was over, its members began softening their positions on enforcing international justice in Libya. The new government – whoever it was – would be able to decide what happened with Libya’s ICC indictees. The Court was hung out to dry.
It is this dynamic which, in my view, at least partially helps to explain why the Office of the Prosecutor, first under Luis Moreno-Ocampo and now under Fatou Bensouda, was inclined to side with Libya in its quest to prosecute Saif and Senussi in Libya, by Libyans. There wasn’t exactly a long line of powerful actors demanding that Saif and Senussi be transferred to The Hague. With no influential powers in its corner, repeatedly declaring that Libya should hand over suspects would not only be futile but make the Court look impotent.
With time, some observers began to openly question the Security Council’s role in promoting the ICC and international justice more broadly. Some even suggested that, if the Council were to refer another case to the Court, the ICC might consider politely declining. Still, by and large, the P3 Security Council members haven’t had to defend themselves. As the legal battle between Libya and the ICC has dragged on, there’s been virtually no pressure on them to intervene with either words or deeds. When pressed, their response has generally been to request that the Court and Libya “cooperate”. But if Saif and Senussi’s defence teams are successful in getting their clients’ predicaments on the agenda of the Council, the P3 might just be forced to justify their positions and perhaps even take some action. Here, Russia could play a very important role.
Russia is undoubtedly upset over how the Libyan conflict transpired. Contrary to the narrative that the media has propagated, however, Russia isn’t upset with the fact that NATO’s intervention digressed into regime change. It is impossible that, when Russia supported the referral of Libya to the ICC and allowed NATO to intervene, it didn’t know what it was getting in to. Rather, it appears that the Russian government is upset that it hasn’t been able to cash in on the spoils of war. Libya and Russia had lucrative deals (including for oil) in place prior to the Revolution. Since the intervention, Russia’s economic interests in the country have been ignored.
Russia is keen to take the P3 to task over Libya and in doing so it has defended the mandate of the ICC. And why not? They are in full knowledge that the P3 has ignored the Court and its work in Libya.
Russia has actually been at it for some time. When Melinda Taylor and three other ICC staff members were detained last year in Zintan following a meeting with Saif, the Security Council was reluctant to take any action or say anything about the matter. When it finally issued a statement, it came only after the prodding of Russian Foreign Minister Sergei Lavrov who declared at the time that “[t]he UN resolution is apparently being violated. We believe that the UN Security Council should provide its feedback on the case.”
More recently, in May 2013, Russia’s representative to the Security Council spoke of the need for even-handed justice in Libya and the country’s doubts that Libya’s current judicial system could prosecute Saif or Senussi fairly:
We support the efforts of the International Criminal Court (ICC) to prosecute individuals who committed heinous crimes during the events in Libya. However, judging from the report, work continues to stall in that regard. In spite of appeals for an objective legal analysis of the activities of all parties to the conflict and post-conflict violence, investigations continue to concentrate only on suspects from the entourage of the former Libyan leader. Even on that front, in spite of ample legal proceedings and activities, we have yet to see progress. After almost two years, there has been no notable progress in prosecuting rebels, although there are accounts of those individuals committing brutal crimes in armed clashes. These facts are well known…
…We support the legal foundation of ICC activities pursuant to the Rome Statute, including the principle of complementarity… In that regard, it would be no exaggeration to state that the moment of truth has come for the ICC with regard to the Libyan investigations.
In our view, the impacts of the crisis in Libya are a serious obstacle to justice being effectively served. Reports from various sources, including civil society bodies, give cause for concern that there are gaping holes in the Libyan legal system. Some of those are a legacy from the past, while others are the direct consequence of recent events. We therefore highly doubt that, at this time, conditions in Libya are eminently conducive to conducting fair legal proceedings in line with international standards with respect to Saif Al-Islam Al-Qadhafi and Abdullah Al-Senussi.
The jurisdiction of the ICC over those cases is contested, and the matter of admissibility will ultimately be decided by the ICC. However, we understand that the Libyan side has not yet provided the Court with convincing information on national investigations. We do not fully understand why Libya has not done so for some time now. We suggest that the Prosecutor and Judges of the ICC take a more careful look into this situation.
We are also concerned by the lack of information regarding the detention of a group of ICC staff in Zintan in June 2012, which was a cause of great concern. That episode endangered the work of the ICC in Libya, undermined its credibility and the security of its staff, and had an adverse impact on interaction between the Court and States.
Of course, the idea of Russia as a defender of fair international justice is questionable if not patently absurd. But most human rights group and proponents of the ICC would be inclined to appreciate, if not fully agree, with Russia’s assessment.
Without the Security Council’s intervention, it is doubtful that the legal and political battle between Libya and the ICC will end well. The Council’s role is crucial because Libya has shown that it will respond to it. Moreover, at this point the Security Council is probably the only actor which can get answers to key questions: What would it take to get Saif and Senussi to The Hague? Is some middle-ground option (an ‘in situ’ trial, a trial in a third country or the sequencing of trials) still possible and, if so, can the Council play a constructive role in setting it in motion?
For various reasons, the UN Security Council, and especially the P3, has been reluctant to take a strong stand on international justice in Libya. But they are the ones who got the ICC and Libya into this mess. They shouldn’t be able to just wash their hands of it or simply look the other way. Russia might just be the key to making sure they don’t.