Libya's embattled transitional government is not only struggling to appoint a cabinet, disarm its powerful militias, and deal with the aftermath of the attack on the U.S. consulate in Benghazi. It is also locked in a tense battle with the International Criminal Court (ICC) over where to try Muammar al-Qaddafi's son Saif al-Islam and the former regime's mysterious intelligence chief Abdullah al-Senussi. Since the fall of Qaddafi's regime and the assertion of a newly sovereign Libya, the ICC's intervention has degenerated into a controversial and, at times, acrimonious battle between Libya's new rulers and the Court over where the highly prized indictees should be tried. Over the past year, Libya's transitional government has sought to demonstrate its effective sovereignty to its citizens and the world by proving itself able and willing to prosecute senior members of the Qaddafi regime. At the same time, the ICC has striven to establish itself as an effective institution that can have positive effects on post-conflict accountability. However, the fight over where to try Saif and Senussi may ultimately serve to undermine the aims of both the ICC and Libya -- not to mention the pursuit of post-Qaddafi justice.
The ICC intervened in Libya when the United Nations Security Council referred the deteriorating situation in the country to the ICC on February 26, 2011. With unprecedented speed, the Court opened an investigation in early March and, in June 2011, issued arrest warrants for Libyan leader Muammar al-Qaddafi, Saif al-Islam, and Abdullah al-Senussi. Following the death of Qaddafi in October 2011, only Saif, his father's former heir apparent, and Senussi, the former intelligence chief many believe was responsible for the murder of 1,200 Libyans in the 1996 Abu Salim Prison Massacre, remained alive. As the regime crumbled in the summer of 2011, both went on the run. In November 2011, Saif was captured by Zintani militiamen in the southern desert expanses, disguised in traditional Tuareg robes. He was subsequently taken to Zintan where he remains to this day. Despite recurrent rumors that Senusssi had also been arrested, it was only after a joint operation between Mauritania and France in March that he was finally detained. After months of speculation -- and to the surprise of many -- Senussi was extradited to Libya in early September.
Government officials have been adamant that both be tried by Libyan judges in Libya and not at the ICC. As Ahmed Jehani, Libya's representative to the Court declared: "No amount of pressure will push Libya" to surrender Saif al-Islam or Senussi. But both remain wanted by the ICC. As a result, in May Libya filed an admissibility challenge at the Court, claiming that it was actively investigating Saif and Senussi and that, therefore, the case was inadmissible at the ICC under the Court's principle of complementarity which grants the ICC the ability to investigate and prosecute only when the host state is unable or unwilling to do so.
To help its case, Libya unveiled a refurbished courtroom in Tripoli as well as a luxurious prison complex outside of the capital where it was claimed that Saif would be held during his trial. The ICC's former prosecutor, Luis Moreno-Ocampo, appeared content to rest on the laurels that the Court had contributed positively to Libya's pursuit of accountability. He capitulated to Libya's demands to try its prized prisoners in Libya and, rather controversially, appeared with officials from Libya's National Transitional Council (NTC) on a number of occasions. In January, Moreno-Ocampo even declared that, "I respect that it's important for the cases to be tried in Libya ... and I am not competing for the case." Moreno-Ocampo's remarks reflected the rather stark reality that the ICC would end up empty-handed. Not only has there been no inclination amongst Libyan officials to transfer Saif or Senussi to The Hague, but the international community -- particularly the U.N. Security Council -- has shown virtually no interest in supporting the Court's mandate in Libya. In short, very few international political actors with any influence have been willing to wield it in support of the Court.
Still, proponents and staff of the ICC clearly disagreed with Moreno-Ocampo's lenience toward the NTC. There remain prevalent fears -- likely for good reason -- that Saif and Senussi will receive the death penalty, a verdict in deep contradiction with the basic impulse of human rights advocates and many international lawyers. Others point to the fact that Libya's judiciary was virtually non-existent for four decades and consequently lacks the capacity to impartially and legitimately try Saif or Senussi. But the battle over their fate has not only taken place between the ICC and Libya's new rulers. It has also occurred within the ICC, exposing bitter tensions.
Responding to Moreno-Ocampo's unprecedented lenience toward Libya's obligations to the ICC, the Office of Public Counsel for the Defense (OPCD), formally appointed to represent Saif, criticized the prosecutor for applying double-standards and even requested that the ICC's Pre-Trial Chamber remove Moreno-Ocampo from the case because of the "objective appearance that the Prosecutor is affiliated with both the political cause and legal positions of the NTC government." The Appeals Chamber ultimately rejected the OPCD's motion but not before issuing an unprecedented rebuke of the prosecutor's behavior, ruling that it "was clearly inappropriate in light of the presumption of innocence" and "may lead observers to question the integrity of the Court as a whole." Despite ongoing animosity, however, no one could have foreseen the debacle that was the illegal arrest and detention of ICC defense counsel staff.
Notwithstanding widespread recognition that ICC staff qualify for diplomatic immunity, four staff members, including Australian lawyer Melinda Taylor, were detained following a meeting with Saif in Zintan on June 7 on allegations that they had been "spying." What followed was a microcosm of the ICC's experience in Libya. Reflecting the international community's general lack of concern with the Court's work in post-Qaddafi Libya, with the exception of a weakly worded statement, the Security Council appeared entirely apathetic. It also quickly became clear that the staff's detention was politically motivated. Nick Kaufman, a lawyer for the Qaddafi family, noted that the four ICC staff members had "fallen victim [to] this hostility which is because of the intensity of the litigation," and that ICC "filings contributed to cementing the, shall we say, anger of the local authorities holding Saif." It later emerged that Libyan authorities had arrested the staff as "retaliation" for the defense counsel's previous filings. Still, with few options available and following public statements from Australia's Foreign Minister Bob Carr encouraging them to apologize to Libya, the ICC eventually submitted a formal statement of regret for any "difficulties" caused by its staff. Stunningly, Moreno-Ocampo appeared to blame the ICC staff for their predicament, declaring that "[i]t's not what we would expect of the Court, of the defence."
It is important to remember that it did not have to be this way. The polarizing battle between proponents of a trial in Libya versus those advocating a trial in The Hague deflected attention from legal and political options that existed which could have satisfied the interests of Libya and the ICC. Two of these alternatives are particularly noteworthy. First, the ICC could have held an in situ trial wherein ICC judges would hear cases and temporarily sit in Libya. Second, the trials could have been held in sequence, with Saif and Senussi tried in Libya and then transferred to The Hague (or vice versa). Both of these options could have met the need for the NTC to retain its sovereignty and demonstrate its commitment to international law and justice. It also would have allowed the ICC to hear key cases and demonstrate that it is willing and able to be politically sensitive to the desire of Libyans to see justice served where crimes occurred rather than divorcing proceedings from victims and survivors. Of course, neither an in situ trial nor a sequencing of trials would have been perfect or risk-free options. However, both could have avoided the animosity of the current debate regarding the fate of Saif and Senussi by finding a middle ground to serve the interests of both Libya and the ICC -- not to mention the interests of justice. Unfortunately, neither of these options were sufficiently elaborated or explored by Libya or the ICC.
So what does all this mean for post-Qaddafi justice, Libya, and the ICC? A major hurdle in Libya's admissibility challenge was overcome with the extradition of Senussi. Had the Libyan government not been able to demonstrate that it has custody of Saif and Senussi, it would have been difficult, if not impossible, for ICC judges to accept the government's admissibility challenge. Yet, while the Libyan government has engaged the ICC from the beginning -- something that must be acknowledged -- accepting Libya's admissibility challenge risks implicitly endorsing the behavior of Libya in illegally arresting and detaining ICC staff protected by diplomatic immunity. The judges may also resist siding with Libya to avoid the appearance of endorsing the death penalty for Saif or Senussi, a verdict that many observers believe would be all but certain if they were tried in the country. Moreover, the Pre-Trial Chamber may rule that delays in putting Saif on trial (he has been held in detention without trial for almost a year) constitute a violation of international due process and, consequently, rule against Libya's admissibility challenge.
Equally important, Libya's desired reputation as an emerging democratic state that respects human rights and the rule of law has been tarnished. Commenting on the detention of Taylor and the ICC staff in Libya, Richard Goldstone wrote, "[w]hat is effectively an act of kidnapping also regrettably demonstrates that there is as yet no rule of law in Libya domestically. Ultimately, what has happened has justified the insistence by the ICC that Saif should be tried in The Hague." When Senussi was extradited, Sir Geoffrey Robertson stated that Senussi faced "not justice, but revenge" in Libya. These views are common amongst advocates of international criminal justice and reflect widespread concern that Libya is fostering a culture of selective justice and impunity.
It seems probable that the ICC's intervention in Libya will have greater effects on the Court than on Libya, particularly in terms of how it will function in fragile, post-conflict contexts in the future. This finding is, in itself, of significance, as it contradicts a generally held assumption that whenever the ICC intervenes in ongoing or recently concluded conflicts, its primary impact will be on the decision-making of state actors. In Libya, however, this does not appear to be the case. More specifically, the authority and legitimacy of the ICC seem likely to suffer in the wake of its intervention in Libya. Of course, this is in large part due to the failure of the international community, particularly the members of the U.N. Security Council that put the ICC's intervention into Libya in motion, to support the Court's work in Libya. But the ICC's own decision-making may also have significant ramifications on its future capacity to function effectively in conflict and post-conflict contexts. First, the Court's apology to Libya is likely to affect the capacity of ICC staff to operate in similar environments in the future. The ICC's apology to Libya in the Taylor affair appeared to send the message that the illegal arrest and detention of ICC staff was, at least in part, the fault of the Court. The danger is that this could set a precedent and encourage states to abuse the rights of ICC staff. Second, the OTP's leniency toward Libya and its currying favor with the NTC is something that must be more critically addressed as it has diminished the Court's perception as an impartial and independent institution. Third, the bitter divisions that have emerged within the Court must be resolved. To ultimately be an effective, independent and impartial Court, the ICC must have a well-functioning OTP and OPCD. Lastly, the ICC may want to think more carefully in the future about accepting Security Council referrals. The Libyan experience demonstrates that the Council is willing to instrumentalize the Court but unwilling to lend it much in terms of political support. Together, these developments will have implications on the capacity of the ICC to contribute to the pursuit of conflict and post-justice for the foreseeable future.
The battle for, and pursuit of, post-conflict justice in Libya has been rife with missed opportunities, misguided decision-making, and controversy. Post-Qaddafi Libya, is unlikely to ever seriously consider giving up its prized prisoners to the ICC. The international community, especially the U.N. Security Council, walked away from its obligations to the ICC a long time ago. After a challenging and tumultuous period of unprecedented controversies, it may now be time for the ICC to reconsider its role as well.
Mark Kersten is a PhD candidate in International Relations at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution, specifically examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya. He is also the creator and co-author of the blog, Justice in Conflict.
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