ICC and the Principle of Complementarity
in state referral cases: the conflict of Libya
Sanna Aseer
Supervisor Dr. Markos Karavias
2nd January 2017
LLM PUBLIC INTERNATIONAL LAW & EUROPEAN LAW
University of Amsterdam
Abstract
The principle of complementarity has derived from the Rome Statute as a regime to assist and complement national proceedings of state parties. Complex issues are created when the case involves a non-state party, which is referred to the Court by UNSC Resolution. Through the creation of a legal obligation for the non-state party to comply with the jurisdiction of the court states develop a resistance pattern and thus create a battle over the jurisdiction of the case. This paper critically examines the functions of the complementarity principle in state-referral cases. The thesis has emphasised on the case of Saif Al Islam Gaddadfi and the conflict of Libya as a case study. The research has been conducted using journal articles and legal documents to support the arguments made. The complementarity regime necessary needs the co-operation and partnership from the national court for the principle to work effectively; in state-referral cases the key issue has been the lack and absence of state consent. The paper analysis the impartiality of the admissibility test under Article 17 of the Rome Statute and highlights the flaws within these key provisions, which can put state-referral states to a disadvantage. As Libya has failed to provide voluntary consent to the jurisdiction of the Court a constant pattern of non-compliance to almost all requests have been visible. The paper has discussed the procedural history of the S. Gaddafi case as well as how the principle of complementarity has failed to contribute effectively to the post conflict state- Libya. The issue of arrest warrants made by the ICC seem to lack an effective outcome and therefore have failed to obtain the Gaddafi; this problem has again derived from the central problem- state consent. The paper lastly examines whether Libya, as a state referral case, has an obligation to surrender the defendant. It seems that the legal obligation created by the UNSC contradicts the provisions within the Vienna Convention. The complementarity regime is flawed for UNSC state-referral cases as the lack of consent will always cause controversial
ICC and the Principle of Complementarity in state-referral cases: the
conflict of Libya
Contents Introduction ... 3 a. Research Question ... 3 b. Methodology ... 4 Complementarity regime ... 5 c. Origin of complementarity ... 5d. The necessity of partnership and cooperation between the ICC and the State ... 7
Complementarity of the ICC in the case of Saif Al-Islam Gaddafi ... 9
e. Procedural history: Prosecutor v Saif Al-Islam Gaddafi ... 9
f. Issues of admissibility under Article 17 of the Rome Statute ... 11
g. Dispute over Gaddafi`s failed arrest warrant ... 13
h. The battle over jurisdiction ... 16
i. The overlooked human rights of Gaddafi ... 18
The conflict of complementarity in Libya ... 20
j. The impact of Libya’s political crises on its legal justice system ... 20
m. Does Libya have an international ‘obligation’ to surrender? ... 26
Concluding Remarks ... 28 Bibliography ... 30
Introduction
a. Research Question
The complementarity regime is an essential feature of the International Criminal Court, which exercises its jurisdiction in the event of a national court of a State being unable or unwilling to launch their own prosecution.1 Since the complementarity regime is designed to tackle impunity as well as international crimes committed by war criminals2, some States prefer to avoid the interference of international bodies, by refusing to co-operate and comply with the requests of the International court and therefore a battle of jurisdiction is created between the ICC and the national court of the State.
The complementarity regime functions in a way in which both the International Criminal Court and the national courts have independent jurisdiction; the primary jurisdiction is given to the national courts to follow up an investigation and thus the ICC only appears to exercise its jurisdiction when the national court fails to do so.3 The ICC maintains a balance between scrutinising the functions of the national court and the effectiveness of investigations as well as upholding a partnership with the national court by encouraging and aiding the proceedings.4 Nevertheless, the ICC is to step in and interfere in national proceedings, as confirmed under Article 17 of the Rome Statute of the International Criminal Court, in the event of the national court of the State being unable or unwilling to prosecute and investigate the case. This has been considerably problematic and significantly ineffective in states, despite the lack of adequate justice system and affects of civil conflicts refuse to consent to the jurisdiction of the ICC. In this event, under Article 13(b) of the Statute the Security Council is able to refer the state to the ICC, without the state being party to the Statute and therefore with the absence of consent, in order to ultimately maintain international peace and security.5 In light of the case of Saif Al-Islam Gaddafi this paper will focus on the principle of complementarity in state-referral cases. The Libyan government had challenged the admissibility of the case in the ICC court and therefore aimed to prosecute the perpetrator within national courts; the International Criminal Court however had rejected this as the
1 Kleffner, J.K, The impact of the Complementarity on National Implementation of Substantive International Criminal law, Oxford University Press (2003) p. 86-‐87
2 Id. 3 Ibid. P. 1 4 Ibid. P. 3
national courts were viewed to lack the capacity to investigate the case due to lacking a stable judicial system at the time.6 The complexity of the case caused mainly by lack of state consent and therefore the constant protests by the National Transitional Council of Libya to maintain jurisdiction over the case of Gaddafi has raised the question to whether the principle of complementarity functions in state –referral cases.
b. Methodology
This paper will adopt a critical stance examining whether the complementarity regime is designed to work in state referral cases. The research question will be approached by critically analysing the use of complementarity in the case Saif Al-Islam Gaddafi and during the Libyan political crises. Journal Articles and press articles covering recent events were used to conduct the research for this paper.
In section 2 (c) the principle of complementarity will be illustrated including the aim and purpose of such a regime and whether it is in fact intended to function in significantly complex cases such as Libya. How do the objectives of the principle of complementarity deal with such intricate and non-complying states? This section will focus on the initial objective of the complementarity principle and whether the provisions are strenuous enough to deal with a state constantly refusing to co-operate and comply with ICC proceedings.
Furthermore in section (d) it is essential to examine the necessity of co-operation between the International Criminal Court and the state in order for the principle of complementarity to work. To achieve co-operation between two bodies consent by the state is required; examining the relevant provisions in the Rome Statute will provide an analysis to the necessity of consent.
The purpose and function of the complementarity principle will be discussed in more detail section 3 in the light of Saif- Al Islam Gadhafi as the central case study. Section (e) will deal with the procedural history of Prosecutor v Gaddafi case. In this part all the significant issues that were raised by the Pre-Trial Chamber will be highlighted.
In section (f) the issues of admissibility in the Gaddafi case will be discussed, this section will focus on Article 17 of the Rome Statute and the issues that were raised under this provision; the disputes on how a State would to be categorised as ‘unwilling or unable’. Section (g) will
6 Ferstman, C et al. “ The International Criminal Court and Libya: Complementarity in conflict”, Chatham
cover the disputes raised on Gaddafi`s arrest warrant and raises the question to whether arrest warrants are designed to work effectively in state-referral cases such as Libya.
The issue of jurisdiction will be discussed in section 3 (h) assessing the notions to why the ICC was not able to obtain jurisdiction.
In section 3(i) the undermined human rights of Gaddafi will be ignored focusing on the importance of the principle of due process and how the International Criminal Court has failed to recognise the significance of the defendants human rights.
Section 4 (j) aims to discuss the impact of Libya`s political crises, caused by the Colonel Gaffadi fall, on the legal justice system. A brief factual background will be provided on the events that had occurred followed by an analysis to whether Libya`s new leadership is able to trial Gaddafi effectively.
In section 4 (k) this paper aims to discuss to what extent Gaddafi`s current legal status has effected the principle of complementarity. The lack of co-operation between the ICC and Libya shall be discussed in section 4 (l) referring to the motives of why Libya has refused to co-operate.
On a final note, this paper will examine the obligations to surrender under the Rome Statute and in ways the absence of state consent effects the principle of complementarity.
Complementarity regime
c. Origin of complementarity
The establishment of a permanent International Criminal Court has provided states with an assurance that the court has the purpose of dealing with international core crimes such as genocide, crimes against humanity and war crimes. The Rome Statute primarily aims to provide the ICC with the jurisdiction over such crimes and equivalently maintain the paramount significance of national jurisdiction of states by implementing a complementary element into its provision.7 The principle of complementarity consequently has derived from Article 1 of the Rome Statute initiating that the Court “shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concerns… and shall be
7 J,K. Kleffner, Complementarity as a Legal Principle and as Criteria for admissibility: Complementarity in the Rome Statute and National criminal jurisdiction, Oxford University Press, (2008) p. 1-‐2
complementary to national criminal jurisdictions”.8 The preliminary aim was to effectively work with national courts and thus deliver a form of assistance to complement national legal proceedings. It is crucial to note that the word “complementarity” found its initial recognition within International Criminal Court via the Preparatory Committee suggesting that it served the purpose to “reflect the jurisdictional relationship between the international criminal court
and national authorities, including national courts”.9 The aim of the complementarity principle was to demarcate the relationship between International Criminal Court and the national courts by providing mutual reinforcement to one another.10 Nevertheless, the unfortunate reality is contrary in States which have suffered great political crises, it is more complex for the International Criminal Court to complement and assist national proceedings when the affected State is unable to fulfil the requirements of the Court.11 Even in the event of the ICC ultimately obtaining jurisdiction over such States, the court is significantly dependent on the national State for its arrest warrants, witnesses and overall proceedings of the case.12
The referral of a state derives by action of the Security Council, which then has the power to indicate states to the International Criminal Court in the event of the state being viewed as a threat to international peace and security. Herewith the principle of complementarity additionally applies to states, which have neither consented to jurisdiction nor to the UNSC referral to the Court.13 It is essential to note therefore that state referral States, due to the lack of consent, will not voluntarily comply with the essential requests of the ICC. Mark Ellis, the Director of the International Bar Association, constructs the view that domestic legislation needs to fully support and co-operate with the ICC`s complementarity.14 The ICC offences, such as providing wrongful evidence or giving a false testimony fundamentally need to be covered by national legislation for the complementarity principle to work effectively.15 Relating this to the Libyan crises the ICC continuously protested that Libya did not have the adequate judicial body to prosecute Saif Al-Islam Gaddafi, this means even if Libya were to comply and hand the ICC the long awaited jurisdiction it would certainly not be able, as
8 K. Miskowiak, The international criminal court: consent, complementarity and cooperation, Copenhagen,
DJOF Publishing, (2000), p. 39
9 ibid., p.45 10 ibid., p.39
11 D. Wippman, Exaggerating the ICC, Cornell University, (2004)p. 155 12 ibid., p.161
13 Infromal Paper see supra note 5
14 M. Ellis, The International criminal court and its implications for domestic law and national capacity building, Florida Journal of International Law, (2002), p. 225
argued by ICC officials during Libya’s admissibility case, to assist with its proceedings and co-operate during investigations; it is very unlikely that Libya would locate the accused, provide witnesses or any form of evidence to the International Court of Justice.16 The complementarity regime aims to work together with the affected national court to initiate investigations but however fails to acknowledge the importance of state consent and the willingness of national court to co-operate.
The principle of complementarity is indeed considered to be amongst the most paramount regimes of the ICC17, as it not only contributes to the prevention of international core crimes but also proportionately provides admissibility criteria, under Article 17 (1) (a) of the Rome Statute; “… unless the State is unwilling or unable genuinely to carry out the investigation or
prosecution”. Although it has been suggested that the wording of Article 17 of the Rome
statute, ‘unwillingness’ and ‘inability’ seem to lack definition providing the prosecution authority with discretionary powers to interpret the provision and thus apply the terms accordingly18 the provision has in fact created a threshold protecting national courts from any excessive interference from the ICC.19 It is relatively difficult for the ICC to convince state referrals that they are unable or unwilling to initiate a criminal investigation under their national court. The shortfalls of the complementarity regime have been highlighted when considering the absence of state consent at this point. Libya likes to believe that, despite the existing criminals within its territory and lack of adequate judicial system, it is willing and able to prosecute to not only rebuild a stable legal system but also maintain the non-interference of any international bodies.20
d. The necessity of partnership and cooperation between the ICC and the State
Prior to discussing the ultimate vitality of a partnership and cooperation between national courts and the International Court of Justice it is essential to raise the question to whether
16 C, Pitts, Being able to prosecute Saif-‐Al Islam Gaddafi: applying article 17(3) of the Rome Statute to Libya,
Emory International Law Review (2013) p. 1301
17 C. Brighton, Avoiding Unwillingness: addressing the political pitfalls inherent in the complementarity regime of the International Court, (2012) p.659
18 B,G. Okott, The principle of complementarity: a facade for state sovereignty of reinforce in the fight against international crimes? (2014) Faculty of Law University of Oslo
19 Kleffner Supra note 7 p. 4 20 Pitts Supra note 16 p. 1303
there is a legal obligation for states to cooperate with the ICC. Under Article 86 of the Rome Statute it is required for the State Parties to “cooperate fully with the Court in its
investigations and prosecutions of crimes”.21 This provision establishes a duty to therefore co-operate with the legal proceedings of the International Criminal Court, which for instance can include obtaining the necessary evidence required for the case, aiding with the arrest of war criminals or creating ways in which witnesses as well as victims can be protected from any further harm.22 A legal obligation is further created by Article 88 of the Rome Statute of the International Criminal Court requires for state parties to “ensure that there are procedures
available under their national law for all of the forms of cooperation which are specified under this Part”. The provision encourages states to establish and maintain national
legislation which is compatible with any ICC proceedings and thus in support of the complementarity regime consequently forming a legal obligation for all state parties to essentially co-operate with International Criminal Court proceedings. As for States that are not parties to the provision Article 13 (b) of the Rome Statute of the ICC provides that the Security Council may refer cases to the ICC Prosecutor creating an obligation for the non-state parties to equivalently co-operate with the proceedings of the court.23However it is essential to note that States which are in fact not party to the Rome Statute are not subject to the International Criminal Court co-operation in the first place, the jurisdiction of the Court is hereby limited and thus the assistance of the Security Council is required for the principle of complementarity to even initiate proceedings.24 The issue therefore comes down to state consent; states such as Libya, despite being a Security Council referral case, refuse to comply with the admissibility criteria under Article 17 of the Rome Statute. The International Criminal Court has stated Libya to be “unable” to initiate its own prosecutions against Said Al Islam Gaddafi more than enough but however has failed to obtain a co-operation by its national court.25
A partnership is essentially required for the principle to operate; a relationship needs to be built between the ICC and the national court in which anti-impunity strategies can be
21 T, Meron, The Making of International Criminal Justice: the veiw from the Bench: selected speeches; Making the International criminal court a global reality through Cooperation, Oxford scholarship online,
(2001) p. 172
22 Id. 23 Id.
24 D, Silander, D, Wallace, International Organisations and the Implementation of the Responsibility’ the
humanitarian crises in Syria, Routledge, 2015, p. 54
25 A. Bishop, Failure of Complementarity: The Future of the International Criminal Court following the Libya admissibility challenge, Minnesota Journal of Int law p .406
implemented efficiently.26 This can consist of division of labour between the national court and the Office of the Prosecutor of the ICC, which can be significantly beneficial for conflict-torn countries essentially needing the assistance to deliver justice within their domestic court.27 What is the use complementarity without a stable co-operation and partnership between the ICC and Libya who views the principle as a threat to state sovereignty and thus refuse to consent to jurisdiction of the ICC?28 It is the significance of co-operation, which is relevant to state referral cases; although UNSC has created an obligation through a state referral Libya yet refuses to comply.
Due to the view that international crimes can transcend more than one State and thus are perceived to be an ultimate international threat it is only ideal to for national courts to share jurisdiction since the ICC will then be able to assess the necessary implementations required.29 It is crucial to note however that national courts have the first initial jurisdiction to deal with war suspects and thus it can be argued that the Prosecutor essentially requires the ability to work cooperatively with the national court from the start in order for the proceedings to function effectively.30 A paramount importance has been placed on the interests of national courts at this stage with the notion that state sovereignty is evidently more vital and consequently come before any international proceedings.31 The ICC practically depends on national proceedings of the state and therefore requires the national courts to perform certain undertakings, such as arrest warrants and gathering of evidence, essentially needed for an international criminal case to arise.32 Complementarity of the ICC in the case of Saif Al-Islam Gaddafi
e. Procedural history: Prosecutor v Saif Al-Islam Gaddafi
The intensive conflicts of Libya had triggered a United Nations Security Council Resolution in February 2011 referring the case to International Criminal Court to issue an arrest warrant
26 ‘Informal expert paper: the principle of complementarity in practise’ 2003, p.3-‐4 27 Ibid, P. 4
28 Bishop Supra note 25 p.399
29 F, Gioia, State Sovereignty, Jurisdiction, and ‘Modern’ International Law: the principle of complementarity in the international criminal court, Leiden Journal of International Law (2006) p.1101
30 Meron, Supra note 21 p 167 31 ibid. P. 168
32 A. Orioli, Revising the ineraction between the ICC and national jurisdiction as a new gateway to
strenghening the effectiveness of international criminal justice , Revue internationale de driot penal, Vol 83,
against Saif-Al Islam Gaddafi.33 The Resolution had created an obligation for Libya (under paragraph 5 and 6) to comply with the proceedings of the ICC and for the ICC therefore to have exclusive jurisdiction over the case of Gaddafi.34 It was decided by the Pre-Trial Chamber in the year 2012 that S. Gaddafi, the son of Colonel Gaddafi, had been intensely involved in the conflicts of Libya by indirectly co-perpetrating crimes against humanity and therefore in breach of Article 25 (3)(a) of the Rome Statute. The ICC classified his crimes as murder within the meaning of Article 7 (1)(a) and persecution under Article 7(1)(h) of the Rome Statute.35 The International Criminal Court claimed to have thus jurisdiction over all proceedings concerned with case of Saif Al-Islam Gaddafi under Article 17 of the Rome Statute; it was claimed that Libya, as a result of the on going conflicts, lacked the judicial capacity and appropriate resources to prosecute S. Gaddafi.36 The issues before the Pre-Trial Chamber consisted of an admissibility challenge by Libya in which the ICC`s request of jurisdiction had been rejected it was argued that they did in fact have the ability to prosecute Gaddafi in national courts.37 The basis of this argument was formed by the fact that Libyan Interim Transitional Council was recognised by the United Nations as the new Libyan Government and therefore Libya had claimed, under its new leadership, would be able to prosecute the defendant effectively within its national jurisdiction in domestic courts.38 Libya argued further highlighting the principle of complementarity being initially designed to complement national proceedings rather than to replace, interfere and ultimately take over national jurisdiction.39 Libya claimed to be ‘able’ and ‘willing’ to prosecute Gaddafi and therefore stigmatizing the national court as lacking judicial capacity undermines the principle of complementarity.40
It was further contended that there was a general ability by the national court to progress investigation proceedings of Gaddafi with the assistance of “UN High Commissioner for
Human Rights and other organizations with respect to strengthening the capacity of the judiciary and the legal profession in general and to provide specialized training for judges
33 J,N, Eseed, The International Criminal Courts Unjustified Jurisdiction claims: Libya as a case study, Chicago
Kent Law Review (2013) p. 573
34 S/RES/1970 (2011) Resolution of the Security Council 35 Prosecutor v. Saif Al-‐Islam Gaddafi case information sheet, ICC 36 id.
37 id.
38 Eseed supra note 33 p. 573 39 Case information sheet ICC
and prosecutors, with a particular focus on litigation related to transitional justice.”41 In
other words Libya believed to be sufficiently confident on being able to proceed with the investigation and trial at its domestic court with the aid of International Organizations.
In response to the claims brought forward by Libya, the Office of the Prosecutor contested Gaddafi have had been detained by a group in Zintan, which had not been part of the Libyan Interim Transitional Council; the main argument at this point was Libya evidently not being in control over the defendant as required under Article 17 (3) of the Rome Statute; the ICC requested solid evidence that Gaddafi will be prosecuted effectively in national courts.42 International Criminal Court Office of Public Counsel for the Defense further supported the view that the militia holding Gaddafi is not in any way associated with the NTC and therefore the Libyan authority has failed to detain Gaddafi. Additionally it was contested that Libya did not have the judicial capacity to initiate an effective trial; the Court referred to the inability to keep witnessed and judges safe and therefore the lack of protection the State can offer.43 The OPCD highlighted the flaws of Libya`s national law and strongly questioned the view of whether Gaddafi would be provided with a fair trial in domestic courts. This idea had been stretched further arguing that judges and prosecuting authorities would not be safe during any prosecutions taking place in Libya; there was a lack of security within Libyan territory which could effect the process of the trial drastically.44 The Pre-Trail Chamber in the year 2014, considered all evidence provided and held the Libyan government being unable to proceed any investigations and achieve an effective prosecutions and thus it was confirmed the case of Saif-Al Islam is admissible in the International Criminal Court.45 After constant failures to obtain any compliance and co-operation with the Libyan Government to surrender Gaddafi for the purpose of being trialed in the ICC, the Chamber concluded to refer to Security Council for assistance of cooperation proceedings.46
f. Issues of admissibility under Article 17 of the Rome Statute
41 Being able to prosecute Saif Al-‐Islam Gaddafi : Applying Article 17(3) of the Rome Statute to Libya,
Emory International Law Review p. 1298
42 Ibid. p. 1300 43 Ibid. p. 1301 44 Id.
45 Case Information Sheet Supra note 32 46 Id.
The issue of admissibility throughout the case of Gaddafi had been one of the significant motives to why the principle of complementarity does not work in politically conflicted States such as Libya. The admissibility had been strongly contested by Libya intensely supporting the view that the State requested to make use of its judicial independency and therefore maintain state sovereignty. As Christopher Pitts has suggested in his article it is essentially required for a post-conflict judiciary, such as the government of Libya, to have the opportunity in restoring its transitional justice; the whole notion for such States to rebuilt their justice system and allowing Libya itself to prosecute Gaddafi has been undermined by the principle of complementarity.47 The Pre Trial Chamber`s constant refusal to consider Libya`s request of jurisdiction over the Gaddafi case does oppose a significant objective of the principle of complementarity; primacy of Libya`s State sovereignty before any ICC proceedings. Undoubtedly it can be agreed upon that in order for a case to be admissible the ICC essentially needs to examine the functions and proceedings of the national court of the State, a feature of the complementarity regime, this in itself is a threat to state sovereignty.48Anna Bishop argues in her article Failure of Complementarity that the admissibility test had been initially intended to interfere with domestic proceedings and therefore to examine whether such a State has met the legal standards of the ICC; States such as Libya will disadvantage from this as they are more likely, due to lack of adequate judicial system, to be categorised as ‘unwilling’ and ‘unable’ under Article 17 of the Rome Statute of the ICC.49 Additionally it raises the question to how Libya would be able to meet the standards of a court in which its jurisdiction it has not consented to. Therefore it can be argued that Libya may disadvantage from this in both ways.
Another issue of admissibility under Article 17 has been the key element to why the principle of complementarity has failed to function effectively in state referral cases such as Libya. Claire Brighton has constructed the view that the Rome Statute has been written in a way, which has formed a ‘same conduct test’; this is to be applied to States by the Court in order to prioritise the requirements of the ICC and therefore investigate the same suspect.50 It was confirmed by the Appeals Chamber that the national court of the State essentially must consider “the same individual and substantially the same conduct as alleged in the
47 C. Pitts supra note 16 p.1298 48 Bishop supra note 25 p. 399 49 Id.
proceedings before the Court” in order for a case to be inadmissible under Article 17(1)(a).51
It can be argued that the principle of complementarity works in a very restrictive method necessitating national courts to fundamentally comply with the ICC provisions and consequently ignoring the national sovereignty of the State. The national proceedings are required to mirror the proceedings of the International Criminal Court52, this is very visible throughout Libya`s admissibility challenge, as the Pre-Trial Chamber constantly requires the NTC to work in accordance to the standards and requirements of the ICC in relation to the detainment, arrest and trial of Gaddafi. It seems that the ICC has adopted a significantly stricter approach in the case of Gaddafi and therefore, Carsten Stahn in his article Libya, the
International Criminal Court and Complementarity questions the use of complementarity in
post conflict States and raises the question of whether the ICC would equally apply such a strict tests to States which have an actual stable government.53 Even if Stahn`s view was to be accurate it is clear that state parties have consented to the same conduct test regardless of its lack of impartiality by being a party to the Statute; non-state parties however are forced to adopt such tests without consent. As Judge Usacka has stated in a dissenting opinion to Judge Song`s, the same conduct test was highly challenging and therefore not a necessary requirement for Libya`s methods of proceedings; there had been a high demand for a new decision.54 Non-state parties such as Libya will always fail the standards stated under the Rome Statute55, the answer to Stahn`s question therefore shifts to the idea that the ICC in fact does treat States such as Libya with much stricter requirements; throughout the admissibility challenge it is clear that the ICC had rejected any efforts and on-going proceedings made by Libya and therefore has affected the principle of complementarity to be perceived as regime which justifies the interference in domestic proceedings of States which have in fact not even consented to the jurisdiction of the Court.
g. Dispute over Gaddafi`s failed arrest warrant
51 Id.
52 C.Stahn. Libya, the International Criminal Court and Complementarity; a test for shared responsibility,
Journal of International Criminal Justice (2012) p.338
53 Id.
54 Ferstaman et al, The International Criminal Court and Libya: Complementarity in conflict, Chatman House
Royal Institute of International Affairs p.3
55 Samson,Megret, Holding the Line on Complementarity in Libya, Journal of International Criminal Justice
An arrest warrant had been issued by the Pre- Trial Chamber against Saif-Al Islam Gaddafi in the year 2011 for the co-perpetration of crimes against humanity under article 25(3)(a) Rome Statute. The arrest had been made internationally when the Libyan authorities as well as the neighbouring States and Parties to the Rome Statute had been informed on the arrests and requests of surrender. 56 Saif Gaddafi had been detained eventually in Zintan Libya. As previously mentioned, the new Libyan government has numerously opposed the arrest warrants issued by the ICC and has used several excuses to either delay or challenge the requests of the ICC.57 The dispute over the arrest of Gaddafi continues to be a significant notion to why the principle of complementarity fails to work in state referral cases such as Libya. It has been argued by John Liolos`s article that there had been huge disputes over the arrests issued by the ICC with States such as Italy claiming that an arrest warrant during Colonel Gaddafi`s substantial power would create a safe exit route in which other States may assist the Leader with a safe haven within their territory.58 This view had been stretched further when the African Union and its member states had refused to co-operate with the proceedings of the International Criminal Court; with an increasing number of states being party to the African Union but not party to the ICC to refusing co-operating with the arrest warrants forms the argument that the principle of complementarity will not have an affect on non complying States such as Libya.59 The arrest warrants of the ICC not only against Gaddafi but also against other individuals such as Omar Al-Bashir, former Head of State of Sudan, have created the notion that ICC aims to target African countries in particular.60 The African Union had stressed that an arrest warrant against Gaddafi ‘complicates any efforts to
in fact negotiate political settlement to the conflicts in Libya’.61 It seems that the International Criminal Court has issued harsh proceedings on States, which clearly refuse to comply and allow any of their national jurisdiction to be handed over to the International bodies. Despite the death of Colonel Gaddafi, the arguments equally apply to the arrest warrant against Saif-Al Islam Gaddafi; there is a constant and on going phase of non-compliance by the Libyan Government to the UNSC created obligation and this originates from the methods and
56 M. Mancini, The Day After: Prosecuting international Crimes committed in Libya, Mediterranean
University of Reggio, p.98
57 ibid. p. 100
58 J.J.Liolos, Justice for Tyrants: International Criminal Court Warrants for Gaddafi Regime Crimes, Boston
College international and comparative Law Review, p. 600
59 Robert Booth, Muammar Gaddafi`s Exit Hindered by the UN Resolution, Law Experts Warn, Guardian
(U.K)., Mar. 29, 2011, at 5 – This article by guardian provides examples of other states which did not comply with the ICC arrest warrants
60 Ibid.
proceedings used by the International Criminal Court which are designed to target African State Leaders which do not comply to international standards and principles.
It is suggested that, Saif Gaddafi, being the son of the internationally known Colonel Gaddafi, is a popular target for the domestic Libyan courts, which contributes to one of the significant reasons to why Libya prefers a domestic trial.62 Non-state parties have their independent notions to why they would like to retain their national jurisdiction and refuse to comply with any of the proceedings of the International Criminal Court; this is the unfortunate feature of some post-political conflict States.
In relation to the arrest warrants of Gaddafi, it would have been far more convenient perhaps to initiate negotiations prior to any warrants issued by the ICC. However, it is difficult to agree upon the view that the militia would have accepted or complied with any negotiations made by the international body. This in itself constructs the argument that the International Criminal Court, with or without the negotiations, would not be able to achieve a peace process through its complementarity regimes.63 The on going political dilemmas as well as the absence of Libya`s state consent will always have a negative impact on the proceedings of the ICC.
It was noted that the ICC`s initial investigations into Libyan affairs was viewed as an interference and even the reason to why Libya turned into an even larger conflicted State. The issued arrest warrants by the International Criminal Court might have given Gaddafi a further reason to resist and object to any proceedings requested by the Court.64 Further in support of this view, the International Crises Group has criticized the arrest warrants issued by the ICC and has argued that it had only made the situation in Libya worse; it is evident that such a dominant individual will simply not surrender through an arrest warrant but contest any requests of the ICC and international bodies even it is at the risk of how death.65 It is clear that arrest warrants made by the ICC have been strongly opposed of and perceived to be the incorrect way of dealing with state referral cases. Evidently States such as Libya are highly rebellious, whether it be the former government leader`s son Saif Gaddafi or the new post-conflict government NTC it is essential for the ICC to comprehend and recognise the notions behind the non-compliance. Arrest warrants are a significant feature of the principle of
62 Samson,Megret supra note 55 p. 577 -‐ 578
63 C, De Vos, S. Kendall, C.Stahn, Contested Justice;The Politics and Practise of the International Court
Interventions, 2015 p.
64 M. Kersten, Justice in Conflict: The ICC in Libya and Nothern Uganda, London School of Ecomonics and
Political Science p.151
complementarity in order to encourage co-operation between the ICC and the State66, however does it really assist non-complying States who have not provided state consent? The answer is that it is evidently not working well in States such as Libya.
h. The battle over jurisdiction
Undoubtedly there has been an intense battle over the jurisdiction of the case of Saif Al-Islam Gaddafi. It is also clear that under the principle of complementarity the national courts of Libya have precedence over any ICC proceedings.67 The notion behind the battle of jurisdiction has however been based on the view that there seems to be a blur in regards to Gaddafi`s prosecutions which has caused the complications in the area of admissibility and arrest warrants in the first place. Providing Libya with the opportunity to trial Gaddafi within their own national courts would allow them to investigate further into the post- conflicts and therefore find alleged criminal acts of other co-perpetrators.68 This evidently, based on the current events, will be much more of a complex job for the ICC; even if the International Criminal Court would obtain jurisdiction of the case, how would they manage proceedings constructively?
There has been a significant concern over the view to if the ICC was to obtain the long awaited jurisdiction it would hinder the survivors of the conflict to participate in the Transitional justice.69 This is referring to the mere fact that jurisdiction given to the International Criminal Court would allow a control over the entire national Libyan court and undermine the idea of a ‘Libyan ownership’.70 This completely opposes the objective of the principle of complementarity, which essentially is to assist and complement the national proceedings. There is consequently a lack of trust in the ICC proceedings by post-conflict States which means there is a general view that those who are associated more with the Western countries may have a more comfortable trial71 than an individual, such as Gaddafi, who has been targeted predominantly by the West. Therefore when it comes to stat-referral
66 F. Malekian, Jurispundence of International Criminal Justice, Cambridge Scholars Publishing (2014),
p.431
67 Liolos supra note 58 p. 596 68 Id.
69 A. Walker, The ICC versus libya: How to End the Cycle of impunity for atrocity crimes by protecting Due Process, p. Northern West University Journal of International Human Rights p.343
70 Id.
cases, it is very unlikely that jurisdiction will be provided to the ICC voluntarily, the scenario in which Libya would surrender Gaddafi is far from reality.72
The issue initially originates from a diversity of legal systems that do not share the same provisions and standards consequently forming a battle of jurisdiction over a case.73 It is evident that in the case of Gaddafi, the ICC has become so persistent with the standards of the International Criminal Court to be met by the Libyan domestic court that it has constructed the view that Gaddafi`s case has in fact failed the complementarity test.74 As Bacio Terracino argues;’ The failure to adopt legislation criminalising these domestically in any manner, if it
prevents a state from prosecuting them, would be a case of unavailability’ 75 Applying this to the Libya case it is evident that it would be categorised as unavailable, as previously argued the Libyan Government does not seem to implement and work with accordance to international standards. Eseeds article argues that jurisdiction of the Libyan court is a significant right of state sovereignty.76 It is worth noting that Libya was not a party to the Rome Statute but merely a referral from the Security Council.77 Therefore Eseed contests that Libya has never consented to the jurisdiction of the ICC, as it did not ratify the Rome Statute. The International Criminal Court attempts to battle Libya for its jurisdiction over the case of Gaddafi when in fact there has never been consent. It is therefore unfortunate for the people of Libya, as they have been greatly affected by the improper jurisdiction of the ICC; it prevents the new liberalised government from exercising its state sovereignty.78
Since much focus has been put on the functions and complementarity features of the International Criminal Court, other options to the solution of the jurisdiction issues have been completely ignored. Not much attention has been paid to the view that the Trial could be relocated to Libya for the ICC to therefore compromise and analyse broader options.79 It has been argued by Kersten, a researcher on the ICC intervention, that despite initial considerations by the OTP for broader alternative of trials it has not been discussed any further.80 It can be argued that the principle of complementarity in the case of Libya has
72 F, Megrit,Too much of a good thing? ICC implementation and the uses of complementarity McGill
University (2010) p. 14
73 Ibid. p.16 74 Id.
75 B. Terracino, National Implementation of ICC Crimes: impact on national Jurisdiction and the ICC, Journal
of International Criminal Justice p. 421
76 Eseed supra note 33 p.569
77 M. Mancini, The Day After: Prosecuting international Crimes committed in Libya, Mediterranean
University of Reggio p.95
78 Eseed see supra note. 76
79 M. Tollitt, A legitimate International Criminal Court for post-‐Gaddafi Libya, Utrecht University p. 39 80 Ibid. p.40
turned into a battle of jurisdiction rather than forming constructive options to Gaddafis trial. The ICC could for example respect the diversity of the Libyan court and therefore negotiate to initiate the trial in Libya, this way Libya would not loose a sense of jurisdiction as the case will take place within Libyan territory and the ICC will be able to prosecute Gaddafi effectively. A battle of jurisdiction will always remain between the International Criminal Court and state-referral cases such as Libya; partly because these type of States, due to a lack of faith in International legal bodies, do not provide jurisdiction easily but equally due to the ICC`s fanatical request for jurisdiction in deprived States.
i. The overlooked human rights of Gaddafi
In order to examine the overlooked human rights of Gaddafi it is essential to note a significant quote by the former Prosecutor of the ICC, Luis Moreno-Ocampo;’ we are not a human rights
Court. We are not checking the genuineness of the proceedings’.81 This stipulates the view that the International Criminal Court does not consider Human Rights as a significant feature of the complementarity regime but is rather concerned with the legitimacy of the domestic proceedings; with international standards to be met in particular. It is clear that the main objective of complementarity has been to end impunity and relevance for a right to a fair trial has been completely undermined.82 The principle of due process has been highlighted by Article 17 in the second paragraph of the Rome Statute however the issue here is that it has failed to make a relevance in the practise of complementarity. As is well known, under Article 17 there is a requirement for the State to be ‘unwilling or unable’ to prosecute in order for a case to be admissible for the ICC. However examining this provision in more detail the Rome Statute at this point is solely concerned with ending impunity caused by the defendant.83 Due process, which is recognised as a Human Right`s principle, refers to the defendant’s right to liberty and life, in this case Gaddafi`s right to a fair trial.84 The issue of due process in the case of Gaddafi has been underlined during the admissibility challenge in particular. One would assume that Article 17 of the Rome Statute would cover the issue of due process as criteria when deciding whether Libya would be unable or unwilling to carry out investigations
81 Samson,Megret supra note supra note 55 p. 572 82 Ibid. p. 573
83 Id.
84 T, Sandefur, In defense of substantive Due Process, or the promise of lawful rule, Havard journal of Law
but it has in fact failed to be the central focus throughout the case.85 Angela Walker, a Federal Law Clerk, in her article The ICC Versus Libya, argues that the Rome Statute fails to support the principle of due process because it focuses increasingly more on the proceedings of the domestic courts. Despite the ICC attempting to claim that there is a countless concern to protect Gaddafi from injustice it is undoubtedly evident that the human rights of Gaddafi have been disregarded by failing to highlight the significance of a right to a fair trial.86 Heller has supported this view and provides an example under Article 17(3), in which is referred to state being ‘unable’, the Rome Statute indicates the ineffectiveness of national proceedings when the issue of ‘unavailability’ is assessed and therefore the fairness of national proceedings is completely overlooked.87 The lack of attentiveness by ICC in relation to a fair trial has also greatly contributed to the view that Gaddafi might then be left with a national trial that does not guarantee due process.88 This is the result of the International Criminal Court failing to address the significance Gaddafi`s Human Rights and the necessity to be provided with a professional defence team. As is well known, according to the complementarity principle, there is an ultimate objective to end impunity. Impunity is a great human rights violation and consequently raises the question to why the importance of the defendants Human Rights has been undermined in this case.89
It in order to understand the importance of human rights within the complementarity regime it is essential to examine whether there are any human rights provisions within the Rome Statute. It has been stated under Article 21(3) of the Rome Statute that; ‘the application and
interpretation of law pursuant to this article must be consistent with internationally recognised human rights’. Since it is clear that the provision provides for human rights to take
precedence it should therefore have to be considered during the admissibility test, under Article 17of the Rome Statute.90 As the principle of due process is enshrined in the Rome Statute, it has been argued by Kleffner and Nouwen that the use of due process has been limited; it does indeed refer to a fair trial and access to legal representation but has rather been defined as ‘to bring someone to justice.91 Considering the actual significance and purpose the
85 A. Walker, The ICC versus Libya: How to End the Cycle of impunity for atrocity crimes by protecting Due Process, Northern West University Journal of International Human Rights p. 307
86 ibid. p 333
87 K, Heller, The shadow side of complementarity: the effect of Article 17 of the Rome Statute on National Due process p. 264
88 Bishop See supra note 25 p. 420 89 Id.
90H,Kendall, The right to access legal representation and admissibility to the international criminal court: walking the tightrope between legitimacy and effectiveness, University College London P.310
due process principle serves, it can be argue that the Rome Statute prefers to keep the objective focused on ending impunity instead of providing a clear outline of the defendants human rights to a fair trial and access to legal representation. What is the use of the principle of complementarity when it fails to focus on the importance of a fair trial and adequate legal representation of Gaddafi, when the significance of the human rights have been outweighed by the ICC`s central focus on protecting itself from any criticism it may face in relation to a failure to end impunity then there is no hope for the defendant to obtain justice at all.92
The conflict of complementarity in Libya
j. The impact of Libya’s political crises on its legal justice system
A sudden collapse of the Libyan Government in the year 2011 had an enormous effect on the Libyan legal justice system. Although the fall of Colonel Gaddafi meant that Libya had finally obtained a system, which had been free of violence and oppression, the significant effects it had caused on the justice system of Libya, had its citizens concerned for their yet continuing fear of insecurity within their own territory.93The Gaddafi regime had been violent and repressive however yet Libyans depended on the system very much and therefore a sudden collapse of their Government caused a major distress within the State.94Gaddafi had formed a regime under very repressed and undemocratic principles, which meant that any individual opposing to his rules would face forceful consequences. The rules and regulations had an on-going effect on Libya’s judicial system, which meant that despite the fall of the leader, and the arrival of the NTC it is yet very difficult to rebuilt and dispose of the political mess Colonel Gaddafi had left Libya with.95
Libya’s legal justice system appeared to have worsened in 2014 following a clash between the new elected Government and the Libyan Supreme Court; there seemed to be a general lack of knowledge on how to govern a State and therefore any democratic structures which had initially been aimed for, were far from reality.96
92 Ibid. p. 303
93 M, Hove, Post-‐Gaddafi Libya and the African Union: Challenges and the Road to sustainable peace, Journal
of Asian and African Studies, p. 2
94 Id. 95 Ibid. p. 3 96 Ibid. p. 8
Nevertheless, Hanspeter Mattes argues in his article ‘Libya since 2011: Political
Transformation and Violence’ that there had been some progress within the Libya`s national
courts. There had been an increase of the NTC membership in 2011, which contributed to the progress of political transformation.97 Furthermore, it was stated that the Council had been able to form an executive branch and thus pass resolutions. Opposing Hove`s reports, Mattes further states that Libya in fact had adequate parliamentary elections as well the formation and drafting of a Libyan Constitution. The development of the Council had however been significantly affected by the on-going conflicts between the opposing groups.98 Despite the on-going attempts to rebuilt and develop a stable and independent government it is evident that there are still considerably perturbing issues and conflicts, which consequently prevent any form of progression.
In relation to the role of the International Criminal Court at this point Kirsten, Fisher and Stewart have commented on the ‘fragile settings’ of the ICC by arguing that the detainment of the ICC staff in Libya just ascertains the lack of plan and procedure of the Court. They have questioned the court and argued further on how the ICC aims to function as an independent well-established body if it had previously failed to keep ICC staff within Libya safe.99 This supports the view that the ICC may not be able to prosecute Gaddafi in The Hague because it would have a difficulty to firstly even locate the defendant; post Muammar Gaddafi, Libya is a politically dented State, which does not hold a stable government. It will be very difficult to assist the ICC, an international body also lacking on effective measures, on proceedings; it puts two systematically flawed establishments in very challenging situation. Although Libya`s justice system has been greatly affected by the on-going conflicts, legal proceedings and independent courts are still in place.100 It has been argued that on the one hand if Libya trials Gaddafi within national court it will form a revolutionary outcome for the national government and contribute to the transnational system of Libya. On the other hand, the international community would be dissatisfied, as it would be undermining the principle of complementarity of the ICC.101
As Mark Ellis has argued: ‘For the post-conflict states, the process can be near impossible.
These states face myriad of problems, ranging from lack of resources, lack of political will,
97 H. Mattes,Libya since 2011: Political Transformation and Violence, Middle east policy, p.61 98 Id.
99 Kirsten, Fisher, Stewart, ‘Transitional Justice and the Arab Spring’’, Routledge, 2014 100 H. Mattes see supra note . 97 p. 61
and absence of human capital, to corruption and politicised courts.’102 It is clear that Libya might not have the relevant resources to work with the ICC but more realistically does not have the political will to comply with ICC requests. As the jurisdiction of the Gaddafi case has been disputed over for years now, it is safe to say that the principle of complementarity is not able to work effectively in state referral cases such as Libya. The fall of Colonel Gaddafi has had a significant impact on the Government of Libya who confidently believed in transitional justice, which the ICC has failed to assist achieving. This is due to the lack of co-operation from Libya in addition to the ICC existing flaws lying within its provisions.
k. Libya’s current position on Gaddafi
In order to examine whether the principle of complementarity works in state-referral cases such as Libya it is essential observe Saif Al-Islam`s current position. It has now been over four years since the initial investigations made by the ICC. The national courts of Libya were finally able to begin the trial of Gaddafi in April 2014; he had been detained in Zintan since the revolution of 2011 and was now trialled via video camera in the courts of Tripoli. Gaddafi`s charges under Libyan national law included attacking civilians and incitement of rape and murder.103 The court based in Tripoli had sentenced Gaddafi to death and this had been heavily criticised by the Human Rights Watch; it was argued that a death sentence highlights the political conflicts of the Libyan Court as the defendant was not present at the trial and his human rights were not considered during the case.104 His sentenced had been quashed based on the fact that the Libyan law in Tripoli was not applicable to Gaddafi.105It means a release of Saif Al-Islam Gaddafi could be in question in addition the his Lawyer, Karim Khan`s request to the ICC for a revocation of arrest warrant and charges.106 Khan has argued that the ICC`s application will be considered inadmissible under Article 20 of the Rome Statute which states that a case is not admissible to the ICC if it has already been trialled in national court`s.107 In addition to his release reports have claimed Gaddafi to be requested and preferred as the new Leader as the majority of Libyan tribal group support his governance in ruling the State; these supporters consist of individuals who have supported
102 M,S,Ellis. Sovereignty and Justice: Balancing the Principle of Complementarity between International and domestic war crimes tribunal, Cambridge scholar publishing, 2014 p.241
103 The Guardian, 2015,Chris Stephen, Gaddafi son Saif al Islam sentenced to death by court in Libya 104 Al-‐Monitor, 2016, Mustafa Fetouri, Will Gaddafi`s son be Libyas next leader?
105 Id.
106 The Guardian, 2016, Chris Stephen, Gaddafi son Saif al Islam ‘freed after death sentence quashed’ 107 Id.
