Four Quick Thoughts on Justice in Libya

by Kevin Jon Heller

This post will seem like an extended plug for my own work, so apologies.  But I wanted to offer a few thoughts on the legal issues raised by Ruti’s excellent post, the politics of which — with one exception, noted below — I completely share.

First, Ruti asks whether Libya should be able to claim the right to try to Saif domestically, given that it has not ratified the Rome Statute.  Here I think the answer has to be “yes.”  Article 17(1)(a) of the Rome Statute provides that the Court must deem a case inadmissible (thus permitting a national prosecution) if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”  That provision does not limit admissibility challenges to States Parties; it extends to any state that has jurisdiction over the crimes in question.  And Libya certainly has jurisdiction over Saif’s crimes.  Had the drafters of the Rome Statute wanted to condition admissibility challenges to states that had ratified the Rome Statute, they would have said so; after all, in Article 14, they specifically limited the right to refer situations to States Parties.  The absence of similar language in Article 17 thus speaks volumes.

(As an aside, there is a related question as to whether Article 17 even applies to Security Council referrals.  I think the answer has to be yes here, as well, given that nothing in the “admissibility” section of the Rome Statute indicates otherwise.  Most scholars seem to agree.)

Second, Ruti suggests that Libya’s admissibility challenge is difficult to square with its duty to cooperate with the Court imposed by the Security Council referral.  I’m not sure that’s the case.  The Rome Statute embraces the principle of complementarity because there is no practical alternative: given the Court’s limited resources, the struggle against impunity requires states to assume primary responsibility for prosecuting international crimes.  As long as Libya genuinely wants to bring Saif to justice, therefore, I think it is fulfilling its duty to cooperate with the Court, not undermining it.

Third, Ruti argues that, to satisfy the principle of complementarity, Libya must give Saif a fair trial.  In her words, “when the Statute refers to whether a state is able or willing to prosecute, that should include all that holding trials imply—that is, able and willing to respect the human rights of the criminal defendant.”  Normatively, I unequivocally agree.  Legally, though, Moreno-Ocampo was absolutely right when he told reporters that the ICC was “not a system to monitor fair trials.  We are a system to ensure no impunity.”  As I have explained elsewhere, the drafters of the Rome Statute did not believe that the Court should be able to admit a case because the defendant would receive an unfair trial in a national proceeding.  Indeed, they specifically rejected the following version of Article 17(2), governing “unwillingness,” which had been proposed by Italy (emphasis mine):

In deciding on issues of admissibility under this article, the Court shall consider whether… (ii) the said investigations or proceedings have been or are impartial or independent, or were or are designed to shield the accused from international criminal responsibility, or were or are conducted with full respect for the fundamental rights of the accused.

Fourth, and finally, Ruti argues that it would be inappropriate for Libya to try Saif for “ordinary” domestic crimes, as opposed to crimes against humanity.  As she says, “one needs to take into account the nature of the offense for which Saif was wanted.  The warrant for Saif lists crimes against humanity—not ordinary offenses—and these are the misdeeds that motivated Security Council action on Libya in the first place… Will Libya bringing case against Saif under ordinary criminal law succeed in sending a similar message?”  I agree with Ruti that there is greater expressive value in a conviction for an international crime than for an “ordinary” crime.  From a pragmatic perspective, however, I think that it would be counterproductive to insist that Libya prosecute Saif for crimes against humanity.  For all the reasons that I explore in my forthcoming article in the Harvard International Law Journal, it is extremely unlikely that Libya will have the capacity to effectively prosecute crimes against humanity, a particularly legally complicated kind of crime, in the near future.  Indeed, it is an open question whether Libya will even be able to effectively prosecute Saif for ordinary crimes.  As a result, if the Court does permit Libya to try Saif itself — and I’m skeptical — it seems to me that the international community should avoid insisting that the prosecution include crimes against humanity.  Doing so, it seems to me, would be a recipe for an acquittal.  And then the prosecution would have no expressive value at all.

3 Responses

  1. I think you have made many good points above, but I wonder whether an argument could be made that the ICC has such an interest in seeing CAH prosecuted that the case would be admissible despite Libya’s prosecution of Saif for ordinary crimes.  In particular, I am thinking of the language in Article 17(1)(a) about States being “unwilling or unable genuinely to carry out the investigation or prosecution.”  Clearly, this was designed to prevent sham trials from depriving the ICC of the right to try a person.  However, I note that both the Preamble and Article 1 stress that the court’s goal is to prosecute and punish those responsible for the “most serious crimes of concern to the international community.”  A prosecution of Saif for ordinary crimes would arguably be inconsistent with this central goal of the ICC.  Might the ICC argue that a prosecution for ordinary crimes is effectively an admission that the Libya is unwilling or unable to carry out an investigation and prosecution of the appropriate crimes?
    You note above that prosecution for CAH would have more expressive value than a prosecution for ordinary crimes. The Rome Statute’s Preamble and Article 1 give significant weight to the expressive value of prosecutions under international criminal law and makes such prosecution a central purpose of the court. And consistent with the Vienna Convention on the Law of Treaties, Article 17(1)(a) of the Rome Statute should be interpreted in light of that purpose (although it should also be given its plain meaning, which may cut against the argument I have made above).

    P.S.  I haven’t looked into the negotiating history of the Rome Statute, so this argument may not be compatible with that history.
    P.P.S. The words “investigation” and “prosecution” in Article 17(1)(a) appear to modify the word “case.” This suggests that the investigation or prosecution mounted by the State must be of the same “case” as that mounted by the Prosecutor. If not, then the ICC has jurisdiction despite the domestic prosecution (a possibility that the drafters apparently contemplated, see Article 20). Case does not appear to be clearly defined, but Article 15(4) suggests that a “case” must fall within the jurisdiction of the court. Can a domestic prosecution for ordinary crimes (which would not be within the jurisdiction of the ICC) be a “case” within the meaning of Article 17(1)(a)?
    I’ll stop rambling now. Must grade exams.

  2. Stuart,

    Fair questions.  I lay out my answer in the article I mention; it explains why the idea that states must prosecute international crimes as international crimes in order to satisfy complementarity is not supported by either the the text or the drafting history of Article 17.  It’s also recently been rejected by the Appeals Chamber, which says that the case in question must simply involve the same person and the same conduct as the ICC proceeding — not the same crime.

  3. I guess I will have to read the article then.  Perhaps on the plane to AALS tomorrow. Thanks for the response.

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