Four Quick Thoughts on Justice in Libya

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.