Is Libya “Able” to Prosecute Saif and Al-Senussi?

by Kevin Jon Heller

In the comments to my previous post, Mark Kersten (of the superb Justice in Conflict blog) asks an excellent question:

Saif remains in the custody of the former rebels in Zintan, not the NTC. Further, the rebels in Zintan have consistently reiterated that they would like to see Saif tried there and not in Tripoli. Yet the admissibility challenge is from the government of Libya – ie. the NTC. Should the Pre-Trial Chamber take this into consideration when ruling on the admissibility of the case?

The answer is yes.  Article 17(3) provides that “[i]n order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings” (emphasis mine).  I don’t think Article 17(3) requires Libya to actually have Saif or Al-Senussi in its custody, but it obviously has to have the ability to obtain them.  Does it?  The motion simply glosses the question (para. 96):

Libya is clearly “able to obtain the accused or the necessary evidence and testimony”. Mr. Gaddafi is under custody in Libya and an extradition request to Mauritania for Mr. Al-Senussi is pending.

I’m less confident than the authors of the motion.  Saif is indeed “under custody in Libya” — but he is not under the custody of the NTC.  On the contrary, as the Registry’s report notes, Saif is being held by a Zintani militia that is not loyal to the NTC (para. 11):

The city of Zintan is under the control of a militia with two factions, one being loyal to the NTC. Both factions do not have good relationships with each other and the suspect is under the custody of the faction that is not loyal to the NTC. Therefore, an ICC delegation conducting a visit accompanied with representatives of the NTC may not be well received.

It is important not to overstate the tension between the Zintani militia and the NTC — the Registry and OPCD were ultimately able to meet with Saif, and a government official was present at the meeting.  By the same token, however, the militia’s willingness to allow a government official to be present at the interview also does not mean that it will be willing to hand Saif over to the NTC for trial.  Expect the OTP to focus on that issue in its response to the motion.

Al-Senussi’s case is even more interesting.  The motion treats his extradition from Mauritania as little more than a fait accompli (para.30):

On 17 March 2012 Mr Al-Senussi was arrested in Mauritania.  The Government of Mauritania gave an assurance to the Libyan Government on 21 March 2012 to the effect that Mr Al-Senussi would be returned to Libya to face trial in due course.  Since that date, the severity of Mr Al-Senussi’s liver disease has become apparent and his health condition is now such that it is understood that he cannot presently be investigated domestically for breaches of Mauritanian law, let alone transferred back to Libya. The justice ministries of both countries are in regular contact and are monitoring Mr Al-Senussi’s condition in order to determine when his transfer will be possible.

There are two issues here.  First, and most obviously, if Al-Senussi remains too sick to be extradited to Libya, the Libyan government cannot satisfy Article 17(3).  Second, given what information is publicly available, the motion seems to significantly overstate the likelihood that Mauritania will, in fact, extradite Al-Senussi to Libya.  The motion simply cites a March 21 article in the Telegraph in which the Libyan government claims that Mauritania has promised to do so.  A much more recent Reuters article, however, indicates that the Mauritanian government has made no such promise:

Libyan authorities are seeking the extradition of Gaddafi’s former right-hand man, vying with Paris and the Hague-based ICC which also have legal cases against him.

[snip]

In March, a senior Libyan government official said after talks with Mauritania’s Abdel Aziz that the latter had given his consent for Senussi’s extradition to Libya. But Mauritanian officials have denied any such commitment was given.

“His case is being studied. We have a number of questions to put to him and we haven’t finished with him yet. We haven’t taken our decision yet,” Abdel Aziz told TV5.

If it was just Libya vying with the ICC for Al-Senussi, we might be able to confidently predict that Libya would win.  But France’s extradition request complicates things significantly, because Mauritania has substantial economic ties to France, as summarized by France Diplomatie (emphasis in the original):

On average, over 10 years, French exports sit at €162 million and imports at €100 million, generating a favourable trade balance averaging at €62 million. Reflecting the impact of the global financial crisis, commercial trade between France and Mauritania had fallen by 42% in 2009 to €240 million, compared with €413 million in 2008. Exports fell by 20% (after an increase of 18% in 2008), placing Mauritania as France’s 106th largest export customer, a drop of 15 places compared with the previous year. Nevertheless, with 1200 French businesses (of which 700 are SMEs) exporting French products to Mauritania, France remains one of Mauritania’s main suppliers. French imports are at their lowest for 10 years at €50 million (-71% compared with 2008), allowing a higher commercial trade balance than usual (€140 million) to be generated. Apart from fish products, they are essentially concentrated in iron ore, where imports fell by 72% in 2009 due to the decline in the iron and steel industry in France.

France is also Mauritania’s leading investor (investments of €76 million in 2008), along with Malaysia (petrol), Canada (copper, gold) and in front of Sudan (telecoms) and the United Arab Emirates (mines, and telecoms via Tunisia)…

There are around 60 French organisations set up in Mauritania in the main service activities (transport, telecommunications, food processing, cement, retail, construction, insurance, waste removal, banking sector). There are also French investments placed in oil and gas exploration (Total, GDF Suez).

Those economic ties do not necessarily mean that Mauritania will extradite Al-Senussi to France instead of to Libya, but the possibility is clearly more than de minimis.  So expect the OTP to emphasize that possibility as well in its response to the motion.  Indeed, I don’t see how the Pre-Trial Chamber could grant the motion with regard to Al-Senussi without an explicit guarantee from the Mauritanian government that it will, in fact, extradite him to Libya instead of to France (or to the ICC itself, though that seems even less likely).  Without such a promise, I think Libya should be considered “unable to obtain the accused” for purposes of Article 17(3).

http://opiniojuris.org/2012/05/03/is-libya-able-to-prosecute-saif-and-al-senussi/

5 Responses

  1. Response… Kevin, this post seems to misread the text of article 17(3). The issue isn’t whether the state is unable to obtain custody of the accused, but whether that inability is “due to a total or substantial collapse or unavailability of its national judicial system.” The fact that Saif Gaddafi is in the custody of a militia who may not be willing to turn him over for trial in Tripoli because they want him tried in Zintan doesn’t show anything about the national judicial system. Of course it shows that the Tripoli government is weak, but the burden will lie on OTP to prove  ”total or substantial collapse or unavailability of its national judicial system” – and why the weak judicial system, rather than weak government, is the reason Tripoli cannot get custody of Saif. 

  2. David,

    The drafting history of 17(3) makes clear that a legal system should be considered “substantially unavailable” regarding a particular case if it cannot obtain the accused (and remember, these are case-specific determinations, not judgments about the national legal system in the abstract).  As well it should: the principle of complementarity cannot require ICC deference to a national trial in absentia, given that the state would (under IHRL) simply have to try the defendant again if it ever obtained him.

    That said, you are right that the burden would be on the OTP to convince the judges that Libya cannot obtain either or both of the defendants.  Al-Senussi would be an easier case for the OTP than Saif, at least as of now.

  3. Imagine the following situation: State X and State Y are enemies of long standing.  State X does not have a functioning legal system, while State Y does.  State X has in its custody a former general of State Y who is responsible for crimes against humanity in State X.  State X will turn the general and critical evidence over to the Court, but not to State Y, even if State Y genuinely wants to bring the general to justice.  Under your reading, the Court would have to defer to State Y’s prosecution even though it could not obtain either the general or the necessary evidence against him.  The result, State Y’s good intentions or not, would be an acquittal.  And such an acquittal would then, under Article 20 of the Rome Statute, prohibit the Court from prosecuting the general for the same conduct, even though State X is willing to turn the general and the evidence over to it and cannot prosecute the general itself because of the state of its legal system.  Such a convoluted approach to complementarity is a recipe for impunity — and can’t be what the drafters of Article 17 intended.

  4. Response… 1. The reading you’re proposing doesn’t entirely make sense of the text. If “substantially unavailable” includes “unable to obtain custody,” then the text requires inability obtain custody due to inability to obtain custody. Regardless of the drafting history, the text cannot sustain that reading. 2. I agree that your hypothetical would lead to an odd result – but so would a case where State X would turn the evidence over to State Y but not the ICC, and ICC trial would lead to a wrongful acquittal. 3. I’m concerned about a case in which even a state with a high-functioning legal system would be unable to invoke complementarity if, for whatever reason, it can’t obtain custody over the suspect because he is a successful fugitive. On your reading, the state has no basis for asking the ICC to cancel its arrest warrant. 4. The more basic problem with the Libya situation is this: If the Tripoli government were in a position to turn Saif over to the ICC, by definition it would have custody of him. If it can’t obtain custody, it can’t honor the arrest warrant. 

  5. David,

    I don’t understand 2.  If State X is willing to turn the suspect and the evidence over to State Y, State Y obviously cannot be deemed unable to prosecute.  And that is true regardless of State X’s attitude toward the ICC.

    As for 3., do you believe that complementarity requires the ICC to defer to an in absentia prosecution?  That is the inevitable consequence of reading Article 17(3) to not require the state challenging admissibility to be able to obtain the defendant.  And if that is your reading of Article 17(3), what does the “unable to obtain the accused” language mean?

    As for 4., I think that is an excellent point — the Libya situation is sui generis, because Article 17(3) is obviously directed at situations in which another state has custody of the accused, not a rebel group within a state.  But we are not yet dealing with surrender; the issue now is simply admissibility.  So if Libya wants the ICC to defer, I still think it will have to show that it can obtain Saif.

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