Among the global challenges presented to the international community in the aftermath of the Second World War was a need to bring to justice individuals accused of the most heinous international crimes. Fifty years of debate and failed international tribunals resulted in the establishment of the Rome Statute on 7 July 1998. The Statute created one International Criminal Court (ICC), which came into force in July of 2002. The mission of the ICC was to bring to justice individuals accused of the most serious international crimes, among which were war crimes, crimes against humanity, genocide, and crimes of aggression.
When the International Criminal Court came into effect in 2002, questions abounded about what the Court’s duties would ultimately entail. Since then, a number of cases have demonstrated that even today the role of the ICC in international affairs remains uncertain. The Court’s attempts to try criminals in states like Uganda, Libya, Sudan, and The Democratic Republic of Congo have yielded mixed results and the impact of the ICC in these countries is as of yet unknown.
An important model of case with which the ICC must contend is its role in states transitioning from repressive regimes. These countries are typically fragile; often emerging from violent internal struggles, and carry with them much uncertainty about the regard their new governments will have for the preservation of human rights. The ICC plays an important role in prosecuting individuals accused of human rights violations and in encouraging the development of domestic judiciaries so that states may try these individuals themselves. Therefore, the International Criminal Court is intrinsically linked with the uneasy work of transitioning a state from a repressive regime accused of gross human rights violations to one that upholds international democratic and human rights norms.
However, it is increasingly apparent that not only has the international community failed to bring to justice a number of individuals accused of crimes of great international concern, but that it has also failed to deter these violations. The cases of Libya, Syria, Uganda, Rwanda, Darfur, Somalia, and dozens of others demonstrate that actions by the international community to protect civilians from these crimes have been too little and come too late. Therefore this paper asks how the International Criminal Court can be used as a tool by the international community to promote respect for human rights norms in states transitioning from repressive regimes. Because of its short life-time to date, there are a very small number of cases in which the ICC has played a role in states fitting this profile. Therefore, a statistical analysis is not feasible. Instead, this paper uses the ICC’s relationship with Libya between February 2011 and the present day as a case study to answer the research question. Libya is an optimal choice because it is a recent and well-documented case that not only fits the research profile but has the added factor of a state emerging from a violent internal conflict in which human rights violations were systematically committed.
This paper argues that the International Criminal Court is best used as a tool for the enforcement of international human rights norms in transition states emerging from repressive regimes when pursuing the development of domestic judiciary institutions through a doctrine of shared responsibility. Analyzing the state of Libya’s relationship with the ICC since February 2011, this paper first discusses the relevant concepts and literature associated with the ICC and its relationship with sovereign states. It will then analyze the relationship between Libya and the ICC since 2011, presenting it as a case study. Next, the paper will argue for shared responsibility as a solution to the conflict that has emerged between the ICC and the Libyan government. Finally, the paper details a process for shared responsibility that achieves the aims of the Court, the state of Libya, and the international community.
An analysis of the optimal role of the ICC in states emerging from repressive regimes is necessary for the continued shaping of the Court’s responsibilities to the international community. By assessing the Court’s relationship with Libya, this research provides insight into how the Court can pursue the preservation of human rights in these fragile nations. A dire need for the Court to serve as a mechanism for enforcing human rights norms makes this understanding vital to the study of international relations.
II. Review of Concepts and Literature
Complementarity and the International Criminal Court
A discussion of the International Criminal Court cannot exist without a discussion of the principle of complementarity. Complementarity is the primary determinant of the Court’s jurisdiction, and the relevant scholarly literature is abundant with analyses of this concept. According to Ellis (2002), complementarity is “the principle that the ICC can gain jurisdiction only when domestic legal systems are unwilling or genuinely unable to carry out an investigation” (pg. 221). This definition highlights a fundamental aspect of the Court: that the ICC is a court-of-last-resort. Deference is given by the Court to domestic proceedings so long as the state in question is “willing and able” to try accused persons for the same crimes as which the ICC has brought charges against them. There is little disagreement over the meaning of complementarity in principle. However, the task of determining whether a state is willing and able to investigate is one which requires navigating much ambiguity. Who is responsible for determining if a state has met these requirements? How are such determinations made?
Stahn establishes that three “unresolved tensions” exist in the debate over whether domestic or ICC proceedings ought to hold primacy of jurisdiction: the scope and implications of the ‘same conduct test’, the relationship between cooperation and admissibility, and the impact of due process and sentencing determination on admissibility (Stahn, 2012). Admissibility refers to the right of the Court to proceed with a trial and the ‘same conduct test’ refers to the determination of whether domestic proceedings are investigating for the same crimes for which the ICC has issued a warrant. Akande asks similar questions, but delves further into the topic by asking if ICC prosecutions should be prioritized over domestic proceedings were those proceedings to occur simultaneously (Akande, 2012).
Ellis (2002) provides an interesting perspective because his work was published before the ICC had yet engaged in any proceedings of its own, but he theorizes that complementarity will “accelerate the current trend to domestic jurisdiction because of the priority of the ICC towards domestic courts” (pg. 221). He argues that because the ICC is complementary towards domestic courts, and states prefer to try nationals in domestic courts, the system will encourage the development of domestic judicial institutions. The ICC, therefore, passively influences the development of domestic courts. Similarly, Mayerfeld (2003) points out that “Conceivably, the ICC could strengthen the international enforcement of human rights without ever hearing a case” (pg. 103). Therefore, Mayerfeld and Ellis both make strong arguments for complementarity as a mechanism which allows the ICC to develop domestic institutions.
Some concern exists over the International Criminal Court’s ability to objectively pass judgment on a state’s willingness or ability to engage in domestic proceedings. Ellis argues that “a number of states have expressed concern about the power of the ICC to determine unilaterally whether a state has the capacity to undertake national prosecutions” (Ellis, pg. 240). Thus he proposes a ‘Third Party Advisory Council’, independent of the ICC and composed of international legal scholars to test the admissibility of a case before the ICC. An independent panel would legitimize the proceedings of the Court and further encourage the development of domestic institutions (Ellis, 2002). The need for this legitimacy is supported by Mayerfeld, who states that “the survival of the Court will depend on its legitimacy in the eyes of public opinion, not least among human rights NGOs, without whose backing it will rapidly lose credibility” (Mayerfeld, pg. 127). Therefore, a number of challenges the Court now confronts in dealing with states such as Libya might be resolved by establishing a third party to determine admissibility. At the very least this would bring legitimacy to the Court, and delegitimize arguments by states hoping to delay the process of investigation by making appeals to the ICC.
Complementarity presents another problem for the International Criminal Court and its relationship with states. Because the Court is complementary to domestic trials, it allows for states to appeal a Court’s intention to engage in proceedings. The process of appeals often delays court proceedings for months or years. This unfortunately derails efforts by the Court to bring wanted individuals to justice in a speedy manner.
The Same-Conduct Test
The same-conduct test refers to the examination of whether the relevant state, if engaged in a proceeding against an individual wanted by the ICC, is trying the individual for the same crimes for which the ICC has brought charges. If the state cannot prove that it is in fact investigating the same crimes, the case is admissible under ICC jurisdiction (Stahn, 2012). However this leads to a number of problems. According to Stahn, many crimes like torture, genocide, and war crimes that are codified under international law and against which the ICC is likely to bring charges are rarely codified under domestic law, making it difficult for a state to pass the same-conduct test. Additionally, if the state fails to address the scope and gravity of crimes it may not satisfy the requirements outlined by the ICC. For example, if a state brings charges against a war criminal for an unprovoked attack on a particular village but the ICC seeks to prosecute the same individual for a more broad set of crimes, the state would fail the same-conduct test.
Obligations of a non-Party State
The case of Libya’s relationship with the International Criminal Court is complicated by the fact that Libya is not party to the Rome Statute which brought the ICC into being. Whether a country not party to the treaty is bound to the ICC’s demands is a matter of much scholarly debate. Akande resolves this by indicating that the source of Libya’s obligation to the ICC is UN Security Council Resolution 1970, which referred the case of Libya to the Court and obligates Libya to comply with the Court’s demands. According to Akande, “It is clear that Libya and the Sudan have an international law obligation to cooperate with the Court and that obligation is one that arises under the UN Charter” (Akande, pg. 306). Though Libya is not party to the ICC treaty, it is a UN member state and thus bound by Resolution 1970.
This reasoning implies that a non-party state would not typically be bound to the ICC’s demands because that state has not ratified the Rome Statute. In the case of Libya, however, the state’s obligations to the court are resolved because UN Security Council Resolutions have binding authority over any UN member state. The Rome Statute explicitly states that the Security Council can refer cases to the ICC and, therefore, UNSCR 1970 binds Libya to the Rome Statute though the state of Libya is not a party to it.
Arguments for Shared Responsibility
This paper makes a two-fold argument: 1) the International Criminal Court should focus on the development of domestic judicial institutions and 2) pursuant to this goal the ICC should pursue a doctrine of shared responsibility. Shared responsibility is the idea that both domestic courts and the ICC would have a role in the trial of an individual. This idea permeates throughout the literature in many forms. Stahn presents three options for shared responsibility in the context of the Libyan case. The first is to prioritize domestic proceedings ahead of ICC proceedings. The second is to sequence Libyan proceedings with those of the ICC. In this way, the burden of the trial will be shared by both parties, with each holding different responsibilities. The third option is to hold ICC proceedings in Libya (Stahn, 2012). Stahn ultimately argues for shared responsibility and a role for the ICC in a domestic trial, though he does not offer specific support for either of the options presented above or how they might be implemented.
Development of Domestic Institutions
This paper’s contention that the ICC should pursue a policy of shared responsibility in Libya is contingent on the Court’s role as an influence on domestic courts. Therefore this paper also argues that the International Criminal Court must play a role in the development of domestic judiciary institutions. Ellis (2002) supports this claim, explaining that because of complementarity, “the creation of the ICC will only accelerate the current trend to domestic jurisdiction because of the priority of the ICC towards domestic Courts” (221). Therefore, the existence of the ICC expedites a process by which domestic institutions become more capable and willing to engage in domestic proceedings.
This process is outlined by Burke-White and Slaughter, who make a strong argument for the role of international law in developing these institutions. They argue that officials of national governments often lack the incentives to engage in legal action against suspected perpetrators of crimes against humanity or related crimes because they determine that the costs of such action outweigh the potential benefits. However, according to Burke-White and Slaughter (2006), “the existence of an international tribunal with concurrent jurisdiction can provide structural incentives that shift the cost-benefit calculation and result in the use of a domestic process that would otherwise have been neglected” (pg. 341). An investigation or trial by the International Criminal Court might have negative political effects on government officials and these officials would have no control over the proceedings were an ICC trial to take place. Burke-White and Slaughter, therefore, argue that an international tribunal such as the International Criminal Court can incentivize countries to develop their domestic institutions by offering the threat of an international investigation.
The International Criminal Court, therefore, clearly can influence domestic courts and encourage their development. Founders of the Court envisioned that the ICC would serve as a mechanism for building national institutions. Upon being sworn in as the first Chief Prosecutor of the ICC, Louis Moreno-Ocampo reflected that “the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success” (Burke-White & Slaughter, pg. 342). This paper adds to Moreno-Ocampo’s statement by arguing that the ICC has a role in creating the ‘regularly functioning national institutions’ of which he speaks.
Conclusions Going Forward
A summary of the literature indicates that a consensus exists among scholars for a middle approach to the International Criminal Court’s role in domestic cases. The concept of shared responsibility is popular, and most argue that at the very least the Court has a role to play in encouraging the development of domestic institutions. However the literature is vague as to how this might occur and fails to propose a consistent strategy to that end. The following research uses Libya as a case study to argue that the International Criminal Court ought to pursue a policy of shared responsibility to develop domestic judicial institutions.
III. Libya: A Case Study for the International Criminal Court
In February of 2011, the popular protests that had spread across the Arab world in a matter of weeks reached Libya. Libya’s Arab Spring was among the most violent. Peaceful protests that began on the 15th of February in the eastern city of Benghazi quickly escalated to violent reprisals by the government of Moammar Gaddafi. The crackdown by the Gaddafi regime was met with violent opposition and within days rebel groups forming in the east took the city of Benghazi and began to force the military westward. Libya’s Civil War continued for eight months and with the help of NATO air forces the rebels succeeded in taking the capitol of Tripoli in September, effectively ending the Gaddafi regime’s 42-year rule.
The International Criminal Court first became involved in Libya on 26 February 2011. On that date, the United Nations Security Council (UNSC) passed Resolution 1970, which referred the case of Libya to the International Criminal Court. According to the language of the resolution, the UNSC (2011) “decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court” (para. 24). Additionally the UNSC (2011), “decides that the Libyan authorities shall cooperate fully and provide all necessary assistance to the Court…” (para. 25). The language of the resolution makes two distinctions that are notable for this paper: 1) that it refers to the ICC only the case of Libya after the beginning of protests on the 15th of February and 2) that it compels Libya to cooperate fully with the ICC despite it’s not being party to the Rome Statute.
In June of 2011, the Office of the Prosecutor for the International Criminal Court issued three arrest warrants for individuals accused of human rights violations during that spring: Moammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al-Senussi. In the aftermath of the rebel victory, opposition forces captured and killed Moammar Gaddafi on 20 October 2011, thus terminating the ICC investigations against him (Dicker, 2013). However the cases of Saif al-Islam Gaddafi and Abdullah Senussi have remained in contention. The National Transitional Council (NTC), the temporary governing body of Libya, has appealed the admissibility of ICC jurisdiction in the cases against Gaddafi and Senussi in the ICC’s pre-trial Chamber. On 11 October 2013, the pre-trial chamber judges at the ICC issued their determination that the case of Abdullah al-Senussi was inadmissible before the Court (Bensouda, 2013). The Libyan government, in other words, have proved that they are ‘willing and able’ to pursue an investigation against Senussi and the ICC terminated its investigation.
However, in the case of Saif al-Islam Gaddafi, the pre-trial chamber judges ruled that the Libyan government had not satisfied the requirements necessary to rule the case inadmissible before the Court. According to an ICC report to the UNC (2013), “the Pre-Trial Chamber has ruled the case admissible before the ICC on the grounds that Libya has failed to meet the legal criteria for making this case inadmissible” (para. 7). This ruling by the Court reveals some of the many problems facing Libya today. Contrasting starkly with the case of Senussi, Saif al-Islam Gaddafi has been held by a militia group in the town of Zintan since his capture in November of 2011. He has been held without trial, and the Libyan national authorities have failed to make a significant effort to bring him under their control. As a result, no proceedings have taken place. The ICC has argued that the Libyan government is either incapable of bringing Saif al-Islam Gaddafi to trial or is not willing to incur the political or monetary costs of forcing the Zintan militia to hand him over to the central authority.
Amnesty International provides a descriptive summary of international concerns over Saif al-Islam’s case in Libya. Held in isolation in the town of Zintan for two years, Amnesty International fears that his detainment has had detrimental effects on his health or well-being. He has not had access to legal counsel in that time and, the organization reports, Gaddafi has not been granted the same level of treatment as other prisoners (“Libya Must Surrender…”, 2013). Moreover, Amnesty argues that “A failure to comply with the ICC sends a worrying signal about the Libyan authorities commitments to protecting and respecting human rights” (Amnesty, paragraph 9). The ICC’s role in Libya is ever more important because of concerns of human rights violations in the period since the fall of the Gaddafi regime (Amnesty, 2013). As an outstanding and notable figure, Saif al-Islam Gaddafi’s case must be handled in a manner that respects due process and human rights norms.
The International Criminal Court’s pre-trial chambers were right to uphold the admissibility of the case of Saif al-Islam Gaddafi. The Libyan government has certainly failed to bring Gaddafi to trial and his extended isolation without access to counsel or the possibility of human rights groups to verify his living conditions raises serious concerns about the Libyan commitment to respect human rights. These concerns are aggravated by conditions throughout the country. According to Amnesty International (2013), “Arbitrary detention, torture and other ill-treatment and enforced disappearances by militias, including those operating nominally under state oversight, contribute to a climate of lawlessness in Libya…” (para. 8). Additionally, Amnesty reports about known cases of assassinations and threats to judges, lawyers, and other public figures. This climate highlights a state of instability and underdevelopment of Libya’s judicial institutions.
IV. In Favor of Shared Responsibility
Improving the situation in Libya is a matter of grave international concern. It is clear that Libya has a number of hurdles it must overcome before it can achieve stability, among which is the need to develop the country’s domestic legal institutions. The International Criminal Court has an important role to play in creating a judicial system in Libya that is effective, efficient, and respects due process and human rights. The ICC can do this by pursuing a policy of shared responsibility in the country.
The ICC should retain jurisdiction in cases where it is apparent that the state is unwilling to prosecute an individual accused of crimes for which the ICC has brought charges. However, the inadmissibility of the case of Senussi before the ICC indicates that the Libyan national authorities are at least willing to conduct such a trial but have had incredible difficulties in doing so. In cases such as Libya where it appears that the state is merely unable to conduct a trial in a manner consistent with ICC obligations, the Court has a duty to aid in the development of domestic institutions so domestic courts can conduct future trials on their own.
The Court, however, has a major credibility problem in determining the admissibility of cases. Ellis’s recommendation for a ‘Third Party Advisory Council’ to determine the admissibility of cases should be implemented. This would both add legitimacy to rulings of admissibility and remove justifications for states in delaying the process of engaging in proceedings.
Stahn indicates that a number of options exist for the ICC to engage in shared responsibility with Libya. This paper argues that Court should hold ICC proceedings in Libya as opposed to The Hague, the seat of the Court in the Netherlands. By holding ICC proceedings in Libya the Court can use the trial as a model for future proceedings in the country. A trial open to observation and criticism by the public would further legitimize the process and its exposure to Libyans would encourage the replication of institutions that operate in a manner consistent with international human rights norms.
Moreover, this paper contends that Libyan authorities should play a role in the ICC proceedings. Firstly, the prosecution and defense teams should be a joint-group of ICC and Libyan officials. The sharing of experiences and information in the conduct of the trial would grant Libyan officials greater exposure to the manner of the proceedings, which they could then impart on their Libyan colleagues. Secondly the court can select, through careful consideration, a Libyan member to take part as one of the trial judges. This would bring further legitimacy to the proceedings to Libyans while also allowing the ICC to satisfy any requirements it might have for a presiding officer. Finally, Libyan officials should be allowed to officially observe the trial, using it as a sample model for the conducting of future trials of a similar nature.
Moreover, an ICC trial held in Libya should also be widely promoted, exposed to the Libyan people and its government as an example for the proper conduct of judicial proceedings. Proceeding in this manner might pave the way for a satisfactory development of Libya’s domestic judicial institutions.
There is no wonder that Libyan authorities have refused to take action in handing over Saif al-Islam Gaddafi to the ICC. Not only would the Libyan national authorities have difficulty removing him from the control of the independent armed militia in Zintan currently holding him, but the Libyan government has an incentive to prove that it is capable of conducting a fair domestic trial. Relinquishing Saif al-Islam Gaddafi to the ICC would serve to effectively admit the inability of the Libyan government to do so.
The International Criminal Court, based on founding principles, has a strong incentive to promote respect for human rights in Libya through the development of domestic institutions. Therefore the ICC should approach the Libyan authorities with a comprehensive plan to share the responsibility of a trial of Saif al-Islam Gaddafi. This plan would involve the ICC’s primary jurisdiction but allow the trial to be held in Libya. Libyan officials would play an important role in the proceedings and the Court would detail a process by which it would advise Libyans on how to improve domestic judicial institutions. The trial of Gaddafi would be highly publicized, allowing Libyan officials to save face by having a role in the trial and serving as an example for future cases.
This model does not necessarily apply to all cases under the ICC’s jurisdiction. While the ICC certainly has a role to play in developing all domestic institutions in the cases over which it presides, each individual case will require different approaches. However policies of shared responsibility ought to be strongly considered by the ICC in the future. Developing domestic judicial institutions will pave the way for greater respect for human rights around the globe and this must be one of the primary objectives of the International Criminal Court.
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Header Image Credit: Vincent van Zeijst, ICC Headquarters in the Hague 2011
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