Tightening the Noose? The Kenyan Arrest Warrant against President al-Bashir

Posted on November 30, 2011 by Patrick Wegner

President Omar al-Bashir was indicted by the Kenyan High Court on Monday, 28th November 2011

Reuters was amongst the first to report that the Kenyan High Court had issued a domestic arrest warrant against the Sudanese President Omar al-Bashir on Monday, November 28. Bashir was the first head of state indicted by the International Criminal Court for crimes committed under his command responsibility during the Darfur conflict in the western part of Sudan. The ICC has issued two arrest warrants against him: one for war crimes and crimes against humanity, issued in March 2009, and a second for the crime of genocide, issued in July 2010.

Despite the warrants the ICC has so far not been very successful in taking steps towards ensuring the presence of al-Bashir in a courtroom. Instead, the arrest warrants have led to a cat-and-mouse game between the Court and the indicted President.

At the same time the warrants have been the initial trigger for a row that developed between the ICC and the African Union (AU), which claimed that the warrants hindered peace efforts in Darfur. In a decision – interestingly taken in Sirte and driven by Muammar al-Gaddafi – the AU decided not to cooperate with the ICC by ignoring the arrest warrant for President al-Bashir.

Against this backdrop, it is difficult to tell how successful the ICC arrest warrants were in isolating al-Bashir and increasing the pressure on Sudan to extradite him. Comparing the number of official visits Bashir conducted before and after the warrants, it is clear that his freedom of movement has been reduced. While Bashir for example regularly visited Kampala, the capital of neighboring Uganda, before the warrants were issued, he has not been to Kampala since and has skipped at least two conferences there, including the AU summit in 2010. The warrants even led to a diplomatic row between Uganda and Sudan when the Ugandan Foreign Minister stated that Bashir would be arrested if he came to Uganda in the run-up to a conference in July 2009. In the meantime, AU Member States like Botswana and South Africa have confirmed that they would stand true to their commitments arising from the Rome Statute and arrest al-Bashir despite the AU decision to the contrary.

President al-Bashir arrives in Nairobi for the celebration of the new constitution in August 2010 (Photo: Stephen Mudiari)

Other ICC Member States like Chad, Malawi and Kenya have pointed out the conflicting obligations arising from the Rome Statute and the AU decision to justify their hosting of Bashir. Some other events have shown that it has become difficult for Bashir to travel freely, even to states not party to the ICC. In June 2011 al-Bashir cancelled a trip to Malaysia after massive civil society protests that prompted a cabinet meeting of the Malaysian government, discussing the invitation.

During a trip to China in summer 2011 al-Bashir’s plane had to return to Teheran, delaying the visit by a day, because Turkmenistan and Tajikistan had apparently not conceded overflight permissions. Other sources say Bashir was afraid of a plot to intercept his plane.

Against the background of this tug-of-war between supporters and critics of the ICC arrest warrants against Bashir, the recent ruling of the Kenyan High Court is an important development. First, it shows that the rift between supporters and critics does not only run through the AU, but has also emerged between parts of civil society and some governments in the Member States themselves. Continue reading →

Posted in African Union (AU), China, Crimes against humanity, Darfur, International Criminal Court (ICC), Kenya, Malaysia, Peace Processes, Southern Sudan, Sudan, Uganda, War crimes | Tagged , , , , , , , | Leave a comment

The ICC Nabs its First Head of State: Laurent Gbagbo Heading to The Hague

Posted on November 29, 2011 by Mark Kersten

Laurent Gbagbo: from Head of State to ICC detainee.

To all those who have bemoaned the International Criminal Court for its inability to lure heads of state before its judges: you have about a day or so to get it out of your system. If reports are correct, the former President of Ivory Coast, Laurent Gbagbo is being transferred to the ICC.

For the ICC, Gbagbo’s transfer is a significant victory. For the Ivory Coast, it remains to be seen how this most recent turn of events will affect the country’s attempts to achieve peace, justice and reconciliation.

A Political Coup for the ICC

In a piece I wrote for International Justice Day, I articulated what many observers probably already knew, but which seems even more pertinent today:

I believe that over the next year, the ICC will put its first former head of state in the dock. Now, don’t go making travel plans to see Sudan’s Omar al-Bashir or Libya’s Muammar Gaddafi facing judges in the Hague. My prediction, rather, is that the former President of Ivory Coast, Laurent Gbagbo, will be brought to the ICC. The Court’s Pre-Trial Chamber is still deliberating on whether to open an investigation in Ivory Coast, but it would be politically irresistible for the ICC not to accept. Gbagbo has already been detained, meaning a transfer to the ICC would be relatively easy. The Office of the Prosecutor would no doubt rejoice in the ability to say: “the Court is able to Prosecutor head’s of state – just look at Gbagbo!”

Violence ripped through Ivory Coast for months following a contentious presidential election (Photo: CNN)

Whether or not the ICC or its advocates like it, much of its success has been and will be measured on the battlefield of rhetoric and politics. In this context, it cannot be understated: Laurent Gbagbo’s imminent transfer to the Court is a massive victory for the ICC. In rhetorical terms, the argument, often proclaimed by critics, that the Court is impotent because it can’t get the “big fish”, has been decimated. Now the ICC and its champions will be able to say it was just a matter of time, we always knew we’d get the big fish. Under her blind fold, lady Justice is sticking her tongue out at the ICC skeptics.

Of course, such a simple narrative belies the fact that Gbagbo was deposed, in large part because of an international intervention. Unlike in the case of Sudanese President Omar al-Bashir, for example, Gbagbo has not been in power for months but rather has been held in detention. Regardless, these details don’t stick as well in the popular imagination as “we are trying a former head of state.”

Justice in Ivory Coast: Questions Remain

How a trial of Gbagbo at the ICC will affect peace, reconciliation and justice in Ivory Coast, remains uncertain. While some reports suggest the situation on the ground has been improving, the country was ravaged by instability, chaos and brutal violence before an international intervention, led by French troops, guaranteed Alassane Ouattara was instituted as President. Continue reading →

Posted in International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC | 2 Comments

Making War Illegal – The Crime of Aggression and the ICC

Posted on November 29, 2011 by Mark Kersten

Over the next few days, we will be publishing three pieces on the crime of aggression. With the first post, JiC welcomes Teddy Nicholson, an MSc International Relations student at the LSE with an avid interest in the subject. In this thoughtful critique, Teddy takes aim at the lack of attention paid to the crime of aggression which, he argues, has the potential to fulfill the real Nuremberg Legacy. Enjoy!

Former Nazi second in command, Herman Goering, sits in the dock during the Nuremberg Trials.

Making War Illegal – The Crime of Aggression and the ICC  

One of the less discussed but more remarkable developments in international criminal law was the agreement in June 2010 at the ICC Review Conference on the crime of aggression. The codification of laws against aggression has the potential to be one of the most profound shifts in the underlying institutional architecture of international society since the signing of the Rome Statute in 1998 and perhaps even the creation of the United Nations in 1945.

What makes the situation more remarkable is how little attention has been paid to the crime of aggression. What really brought this home to me was a discussion I had with a high level official from the Office of the Prosecutor of the ICC shortly after the review conference who told me that the OTP was paying limited attention to this new crime under the Court’s jurisdiction. This lack of interest in the subject was reinforced at a recent talk by an eminent jurist with a long career in international criminal law. When I asked him about the development of the crime of aggression, he gave a vague and generic answer which betrayed a lack of engagement with it. I have since become increasingly convinced that this is because those who work in or around the Court on a regular basis tend to see the core mission of the ICC as fitting in with a human rights agenda and don’t know how to deal with the crime of aggression.

Criminalizing Aggression: A Brief History

I have made some strong claims for the crime of aggression. In order to justify these, we need to take a look at the history of the crime.

There is a common narrative of international criminal law that treats the ICTY, ICTR and ICC as fulfilling the ‘legacy of Nuremberg’. This involves telling a story in which Nuremberg was a response to the hideous human rights violations in the Holocaust, and was followed by revolutions in human rights centered around the Universal Declaration of Human Rights, the Genocide Convention and the Geneva Conventions. International Criminal Law was then put on ice for 50 years by the Cold War until the 1990s when tribunals were established that would finally give teeth to the long-gestating international human rights movement.

Former Nuremberg Prosecutor, Ben Ferencz, dances during celebrations at the Kampala Conference where the crime of aggression was defined and enshrined in the Rome Statute (Photo: Margaret deGuzman)

The problem with this story is that it is an ahistorical account of what the Nuremberg International Military Tribunal (IMT) represents. Rather than the IMT being institutionally complementary to the human rights movement, it was designed to complement the UN Charter. It is often overlooked that the main crimes for which the Nazis were tried for were not crimes against humanity or war crimes, nor genocide (which hadn’t been codified), but crimes against peace – what we now call the crime of aggression. Continue reading →

Posted in Crime of Aggression, International Criminal Court (ICC), Nuremberg Trials, UN Security Council | 2 Comments

Beyond Criminal Justice: A Truth Commission in Libya

Posted on November 28, 2011 by Mark Kersten

A fascinating debate about where to try the two surviving members of theTripoli Three – Saif al-Islam Gaddafi and Abdullah al-Senussi – is currently raging (see here, here and here). It’s an important debate, and, as readers will know, I have chirped in as well.

But the preoccupation with criminal responsibility shouldn’t detract from the over-arching need for accountability, truth and reconciliation in Libya. Yes, ‘accountability’, ‘truth’ and ‘reconciliation’ are lofty and contested words; this blog post doesn’t pretend to capture the competing views or the political nature of each. The point is rather simple: after forty years of a police state engaging periodically in international terrorism and repressing the freedoms of its own people, there’s a need to pursue justice outside of the courtrooms. An empowered and independent truth commission in Libya could help do just that.

Beyond Trial-Heavy Transitional Justice

The development of international criminal justice is nothing short of remarkable. According to its President, Sang-Hyun Song, when the International Criminal Court became a reality in 2002, the Court’s first judges expressed doubt that the ICC could survive the skepticism and hostility of international politics. Today, hardly a day goes by that an international tribunal isn’t in the news. So remarkable is its reach that individuals, from Sudanese President Omar al-Bashir to former Secretary of State Henry Kissinger, not only fear international criminal justice but calibrate their day-to-day lives according to its reach.

Yet, simultaneously, the expansion of international criminal law onto the agenda of international politics has led to a myopic focus on individual criminal accountability. Indeed, transitional justice and justice in conflict are, generally, trial heavy. Thus, a handful of individuals are deemed responsible for social processes as complex as the alleged genocide in Darfur and the war in Vietnam.

Of course, the focus on individual accountability is not, in itself, a bad thing. There are some individuals who are most responsible for international crimes. However, the attention, resources and political will aimed at ensuring international criminal justice should not come at the expense of identifying the social causes of atrocities. In contexts like Libya,  justice does not end with the sounding of a gavel. There is a need to bring to account those who allow atrocities to occur but could never be brought before an international or domestic tribunal. As Kirsten Ainley explains in a forthcoming paper,

“responsibility for war crimes lies not with individual perpetrators alone but also in significant measure with collectives and with those individuals who did not commit crimes but did contribute to harm.”

Ainley rightly adds that individual accountability should not detract from addressing the “excesses of responsibility” outside of trial chambers. Truth Commissions (TCs) are in a perfect position to do just that.

Getting to the Truth through Truth Commissions

Truth commissions provide accountability primarily through the process of acknowledging that certain criminal acts were committed, and identifying individuals as responsible for those crimes. As the individuals responsible for harmful acts testify and acknowledge their behaviour, truths about the past emerge. Proponents of truth commissions argue that this process of acknowledgement is the first necessary step on the path towards closure and, possibly, forgiveness. Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3), Traditional Justice Mechanisms, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Leave a comment

The “Crown Jewel” of Justice in Libya: Senussi, not Saif

Posted on November 22, 2011 by Mark Kersten
Senussi interpol

Abdullah al-Senussi (Photo: Interpol)

Since the NATO-backed rebellion in Libya began to sweep away at the four-decade rule of Muammar Gaddafi, the international attention (deficit disorder) paid to Libya has tended to only concentrate on one of the Tripoli Three at a time.

For the vast majority of the conflict, virtually all attention was paid to the enigmatic leader of the country, Colonel Gaddafi. With a few notable exceptions (his links to the LSE and his appearance in Tripoli after being reported captured), Gaddafi’s son, Saif al-Islam escaped much scrutiny.

With Colonel Gaddafi’s death, attention naturally turned to Saif al-Islam, a man who allegedly plagiarized his way to a doctorate from the LSE and manipulated his way into the West’s imagination as a potential moderate heir to his father’s blood-soaked throne. This however, has allowed the third member of the Tripoli Three – the trio of ICC-indicted Libyan officials – to fly, almost entirely, under the radar.

Unlike Colonel Gaddafi and Saif al-Islam, this third member has not had videos or photos depicting his capture or detention splayed out before eager eyes on the internet. His name is Abdullah al-Senussi and he may just be the most important key to justice and reconciliation. Indeed, at a recent lecture in London, respected human rights lawyer Geoffrey Robertson described Senussi as the “crown jewel” of justice in Libya.

Who he is?

Senussi is 61. He is a long-time Libyan official and confidant of Colonel Gaddafi. He has variously been described as “the right hand man” of Gaddafi, the “keeper of Gaddafi’s secrets”, Gaddafi’s “eyes and ears” and, I’m certain, much worse. But Senussi is not just close to the Gaddafis, but part of the family, as Colonel Gaddafi’s brother-in-law.

Curious observers will notice that there isn’t much to find when searching for images of Senussi. This is because, despite wielding an immense amount of power, he has largely kept a low-profile.

Senussi’s involvement in Col. Gaddafi’s tyrannical rule began at some point in the 1970s, although little is known about his role at the time. Regardless, as one commentator noted, “Senussi’s association with the worst excesses of the Libyan regime stretch back to the early days of Col. Gaddafi’s dictatorial rule.” His power and evil streak stem primarily from his position as both the head of the internal and external intelligence services of Libya under Gaddafi.

As a key cog in brutally suppressing the Libyan revolution, Senussi was indicted by the International Criminal Court, as an “indirect perpetrator, for two counts of crimes against humanity.” He was captured this week while hiding in his sister’s home, in the south of Libya and Libyan authorities have said he will face trial in the country and not in The Hague.

What’s he done?

The list of massacres and crimes that Senussi has allegedly been involved in reads like a Christmas list from hell: Continue reading →

Posted in Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3), Uncategorized | 1 Comment

The International Criminal Tribunal for the former Yugoslavia: Reconciling Torn Societies?

Posted on November 21, 2011 by Patrick Wegner

The front of the premises of the International Criminal Tribunal for the former Yugoslavia in The Hague (Wikimedia Commons)

I have always been of the opinion that we need to closely scrutinize the effects that are being attributed to international trials. There is a tendency to conflate the objectives and capabilities of international courts and tribunals by putting forward ever new and more grandiose claims as to what they can actually achieve in building up post-conflict or post-dictatorship societies. One of the classical claims brought forward is that trials can contribute to the reconciliation of torn societies by determining who is and who is not guilty of committing atrocities and by presenting a truthful historical record on which a common future can be built.

According to Audrey Chapman reconciliation in this context means both the transformation of the relationship between people living in the conflict region as well as the creation of a new relationship built on trust between the people and the government (p. 143). As reconciliation processes are more likely to gain momentum in the long run, the case of the International Criminal Tribunal for the former Yugoslavia (ICTY) is probably the most suitable for having a closer look at these claims. Indeed, the ICTY does claim that it furthers reconciliation within its jurisdiction by personalising the guilt for atrocities and thus shielding communities from being labelled as collectively responsible in the general information material available at the premises of the court.

The ICTY has been investigating crimes and trying cases in the former Yugoslavia for close to two decades now. Important international players like the US have discouraged the court from ever becoming an effective institution in its early phases by trying to withhold necessary resources and the tribunal has seen its fair share of attempts of external political meddling in later years. Still, the ICTY has been able to produce some impressive results, including the arrest of those deemed most responsible for the worst crimes committed during the Balkan wars. The tribunal has shown that those indicted will eventually end up in the dock, even if it takes decades for justice to take its course.  Former Serbian President Milosevic was arrested in April 2001, and Radovan Karadzic, accused of being involved in the Srebrenica Massacre, was arrested in July 2008, after having lived in hiding as a doctor for alternative medicine in Belgrade for years. Finally, the court was able to secure the arrest of Ratko Mladic, the last fugitive among the high profile indictees of the tribunal, in May 2011.

Ratko Mladic in his uniform during war times

Continue reading →

Posted in Apologies, ICTY, Ratko Mladic, Serbia, Slobodan Milosevic, War crimes | Tagged , , , , , , , , , , , , , | Leave a comment

ICC Confirms: Trial in Libya by the Court is a Possibility!

Posted on November 21, 2011 by Mark Kersten

(Photo: REUTERS/Ahmed Jadallah/Files)

So it wasn’t such a crazy idea after all. Tucked away and close to the end of a Reuters article from last night were words that sped up my heart-rate. In the context of the ongoing debate about where to try Saif al-Islam Gaddafi and Abdullah al-Senussi, a spokesperson for the International Criminal Court admitted that a possibility exists to hold an ICC trial in Libya:

There are, however, few obvious alternatives to trying Gaddafi and Senussi at The Hague, which risks angering many Libyans, and holding a trial in Libya without ICC authorization, which is likely to upset the West, violate international law, and provoke accusations of victors’ justice.

ICC spokesman Fadi El Abdallah said a third option could be for the ICC to hold trials in Libya rather than at its Dutch headquarters, though how that would work in detail was unclear

“It is possible for ICC judges to organize a trial in the country if deemed appropriate,” El Abdallah said.

Readers will know that a handful of observers, including David Kaye, Kevin Jon Heller and myself (see here and here) have spoken out in favour of such an option. Yet, to date there had been no official statement in support or against it.

Of course, with ICC chief Prosecutor Luis Moreno-Ocampo bound for Libya at some point this week, it remains to be seen whether he will attempt to negotiate such a justice-sharing agreement with Libya’s National Transitional Council. He could insist on bashing Libyan authorities over their heads with their purported procedural obligation to hand Saif al-Islam over to The Hague – but given their obvious desire to hold a trial in Libya this would seem fruitless.

I say: go for it!

*********************************************

UPDATE: it seems that the arrest of Senussi and Saif-al Islam Gaddafi has instigated more discussion of a possible ICC trial in Libya. Writing at The Guardian, Phillippe Sands adds his voice to the debate, listing four options, including “in situ” ICC proceedings:

“A second option is for the ICC and the new Libyan government to reach agreement on an ICC trial in Libya. This is not something the court has done before; it might go some way to satisfy understandable demands in Libya for a local trial, subject to international oversight and justice dispensed by international judges.”

Posted in ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3), Transitional Justice | 4 Comments

Saif Gaddafi Arrested: What now for Justice in Libya?

Posted on November 20, 2011 by Mark Kersten

Saif al-Islam Gaddafi on the plane to Zintan after being captured (Photo: Getty Images/AFP)

Last Friday night, Saif al-Islam Gaddafi, dressed in the traditional garbs of the Tuaregs, was detained whilst on the run, likely to neighbouring Niger. With the death of his father, Colonel Muammar Gaddafi, Saif al-Islam had become the most wanted man in Libya and one of the most wanted men in the world. Now, bearing injuries from a NATO air raid this past October, he is cowering in some detention facility in Zintan, a few hours outside of Tripoli. So what now for justice in Libya?

Journey to the ICC: Over before it Began?

Just a few weeks ago, Saif al-Islam made international headlines with reports suggesting he was trying to flee Libya and was willing to hand himself over to the International Criminal Court (ICC). In the wake of the nauseating treatment of Colonel Gaddafi following his capture, it only made sense that Saif al-Islam would want to prevent a similarly brutal fate.

What’s more, the ICC chief Prosecutor, Luis Moreno-Ocampo, maintained that the Court had been in contact with Saif’s “intermediaries” to discuss his surrender to the Court in The Hague.

To date, there has been little more than speculation as to whether any of the above actually happened. The conflict in Libya has spewed a lot of hearsay and rumours, reminding us of the all-too-true adage that “in war, truth is the first casualty.”

Indeed, it is interesting that when asked about having spoken to the ICC about potentially surrendering by a Reuters correspondent following his capture, Saif, who had said little to that point, remarked: “It’s all lies. I’ve never been in touch with them.”

Whether or not Saif did get in contact with ICC officials or not, the chances that Saif al-Islam will ever reach an ICC court room are zero-to-none.

There are rumours that the Libyan National Transitional Council (NTC) will hold a vote to decide where Saif al-Islam Gaddafi should be tried. While this would be a sensible and democratic approach, it virtually guarantees that Saif will be tried in Libya.

Observers are right to point out that, under international law and Resolution 1970, Libya has an obligation to arrange the transfer of Saif to The Hague. However, it seems unlikely that much will be made of this obligation amongst international diplomats and leaders.

In this context, the remarks by UK Prime Minister David Cameron were telling, but for what they didn’t say:

“It is a great achievement for the Libyan people and must now become a victory for international justice too…

…Britain will offer every assistance to the Libyan government and the International Criminal Court to bring him to face full accountability and justice for what he has done.

The Libyan government has told us again today that he will receive a trial in line with international standards, and it is important that this happens.”

Cameron neglects any mention of the obligation to bring Saif to the ICC and like other comments on the issue and much of the rhetoric regarding international justice in Libya, suggests that Libyan authorities will be in the drivers’ seat when it comes to deciding Saif’s fate.

Photo of Saif al-Islam Gaddafi shortly after his capture (Photo: Getty Images/AFP)

What (International) Justice will be served?

Despite protestations by the NTC that Saif al-Islam will get a “fair trial”, there are significant potential dangers to having a trial in Libya. Beyond the fact that there has never been a functioning independent judiciary for at least four decades, it is not clear what domestic legal paradigm could be used in trying Saif al-Islam, nor whether international law would be respected in key regards. Continue reading →

Posted in Complementarity, Human Rights, ICC Prosecutor, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | 3 Comments

Justice in Conflicts: What’s all the Fuss About?

Posted on November 16, 2011 by Patrick Wegner

Pablo Picasso's 'Guernica' has become one of the most powerful symbols for suffering in war of contemporary times

When I first found this blog, weeks before becoming a regular author, I was excited. I thought it covered an angle of the transitional justice debate that had so far been neglected, and I would like to take the time to elaborate that point in this post. I believe that the application of international criminal law in conflicts is a trend that will be with us for the decades to come. The implications of this development may be enormous, and I believe that the potentially far-reaching consequences have so far not gotten the attention they deserve by academics and practitioners alike.

For those who have been working on questions of transitional justice for some time, this statement might seem a bit grandiose. After all there is a long history of national trials and amnesties implemented during conflicts. Nicaragua tried a number of rebels for crimes against humanity between 1983 and 1988 while its bloody civil war was still ongoing and the Philippines tried members of its military in 1988 and 1990 during its conflict with the Communist Party of the Philippines, to just name two examples. But the trend of transitional justice moving into conflicts can be demonstrated both in figures as well as in statements made by stakeholders.

The Transitional Justice Database compiled by Prof. Payne, Andrew Reiter and Tricia Olsen includes all transitional justice measures implemented worldwide between 1970 and 2007. If we have a look at the trials conducted in the context of conflicts, we find a steadily increasing number, particularly starting in the early 90s. While 17 trials were carried out in conflict contexts between 1972 and 1991, 34 were initiated between 1992 and 2007 alone. At the same time, the share of international and hybrid trials amongst the total number of trials conducted in conflicts is increasing.

This graph shows the number of transitional justice mechanisms applied in conflict context. The share of trials is increasing.

This suggests that there is an increasing probability that atrocities committed in conflicts will trigger what we might call an international criminal justice intervention. The likelihood that either the International Criminal Court (ICC) or a tribunal mandated by the United Nations Security Council intervenes has increased with time. This is reflected in the statements of some stakeholders. The Chief Prosecutor of the ICC, Luís Moreno Ocampo, has made this explicit: ‘[t]he ICC’s mandate to select the most serious crimes committed after July 1, 2002, requires that we engage in judicial proceedings in relation to conflicts even before they have ended. […] My Office is part of a new system dealing with a complex new reality: transitional justice during ongoing conflicts.’ Continue reading →

Posted in Justice, Peace Processes, Peacebuilding, Responsibiltiy to Protect (R2P), Transitional Justice, UN Security Council, Uncategorized, War crimes | 1 Comment

Who Gets to Serve Justice: Saif Gaddafi and ICC Due Process

Posted on November 15, 2011 by Mark Kersten

Mathias Holvoet, a PhD-Candidate, studying international criminal law, at Vrije Universiteit Brussel (Free University of Brussels), joins us to discuss the possible surrender of Saif al-Islam Gaddafi to the ICC. Specifically, Holvoet covers the issue of due process of the accused at the ICC in the context of the complementarity regime . Mathias is also an nalyst for the Global Justice Section of the Global Governance Institute. 

Who will try Saif al-Islam Gaddafi (middle)?

On the 26th of October, Saif al-Islam Gaddafi, the last of Muammar Gaddafi’s eight children still on the run, proposed surrendering to the International Criminal Court (ICC), which had indicted him for crimes against humanity.

Apparently, Saif al-Islam, having seen his father killed in cold blood by rebel militiamen, is so fearful of staying in Libya that he would rather face trial in The Hague. Saif al-Islam had previously called the ICC a tool of foreign powers. But they are also the only organization that would at least respect his rights as an accused, something doubtful of the NTC. Given the troubling human rights record the NTC has compiled in recent, including abuses of detainees and assassinations, Saif  al-Islam’s fear would appear to be warranted.

It was also reported that the former intelligence chief of the Gaddafi regime, Abdullah al-Senussi, intended to surrender to the ICC as well. On the 28th of October, the ICC said it had held talks – through intermediaries – with Saif al-Islam about his possible surrender. In response, the NTC expressed concerns over the informal talks the ICC had with Saif al-Islam. The NTC would prefer to capture Saif al-Islam and put him on trial in Tripoli.

Due process of the accused v. the primary right of the state to prosecute its nationals for international crimes in light of the principle of complementarity (Article 17 ICC Statute)

The future will tell if Saif al-Islam really wanted to surrender to the ICC as a result of the deteriorating human rights situation in his home country. But let’s consider, for the sake of the argument, that Saif al-Islam indeed surrenders himself to the ICC in order to evade “justice” (in whatever form that may be) in Libya and the Libyan courts subsequently start their own investigations, and request the transfer of Saif al-Islam, basing themselves on the principle of complementarity and their primary right to investigate and prosecute the crimes at stake. This raises fundamental questions on the mysterious mysteriousness of the concept of complementarity, which is considered the cornerstone of the Rome Statute.

Saif al-Islam Gaddafi has reportedly said he wants to give himself up to The Hague to avoid a fate similar to his father's

Under Article 19 of the Rome Statute, an accused has the right to challenge the admissibility and jurisdiction of the ICC on the grounds referred to in Article 17 of the Statute, but the Statute is silent on the right of the defendant to challenge the inadmissibility of the case. What is more, it seems that the Rome Statute relies on the underlying presumption that the rights of the accused are guaranteed if the accused can challenge the jurisdiction of the ICC by asserting his right to a trial in his home forum.

Consider, for example, that the Libyan authorities pursued their own investigations into the crimes committed by Saif al-Islam and bring challenges under Article 19 of the Rome Statute to the ICC on the grounds that the Libyan courts are genuinely able and willing to prosecute Saif al-Islam, similar to the recent submissions brought by the Kenyan authorities before the ICC to challenge its cases against six suspects accused of orchestrating violence in the aftermath of the disputed 2007 elections. Would Saif al-Islam be able to challenge a referral of his case to the Libyan authorities, arguing that the Libyan courts are unable to guarantee due process?  More generally, can the ICC rely on due process for a defendant to render a case admissible, and if yes, to what extent?

The majority of international criminal law scholars would answer with a clear “yes”. In defense of the due process thesis, they argue that the prospect of an unfair national trial renders a State ‘unwilling’ to investigate or prosecute. Others point to Article 17(2) of the Statute, which says that unwillingness should be determined with ‘regard to the principles of due process recognized by international law’. Still others argue that a State is ‘unable’ to investigate or prosecute if it does not guarantee fair trial rights of the accused.

A minority however disagrees. Kevin Jon Heller argues, in my view quite compellingly, that nothing in the Rome Statute suggests that Article 17 requires States to guarantee defendants due process. Continue reading →

Posted in ICTY, International Criminal Tribunal for Rwanda (ICTR), Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | 2 Comments