The ICC and Saif: After International Intervention, Avoiding Victor’s Justice

By Professor Ruti Teitel

When the United Nations Security Council authorized the use of force to protect civilians in Libya, the Council also referred the situation there to the International Criminal Court (ICC) in the Hague, and placed Libya under a legal obligation to cooperate fully with the ICC. Now, after the capture of Saif Ghadaffi, the meaning of this obligation is being put to the test. Saif is wanted by the ICC for war crimes; but the Libyan authorities want to prosecute him in the country’s own courts. The ICC prosecutor, Luis Moreno Ocampo, takes the view that Libya has a right handle on Saif’s trial, provided its courts are up to the task.

Ocampo is relying on a principle of the ICC’s Statute, known as “complementarity”—the principle which allows for a challenge to ICC jurisdiction on the grounds that the state in question is able and willing to try the accused in its own courts. But Libya is not a signatory to the ICC’s Statute and so the question arises if it should be able to rely on complementarity. Where the ICC’s mandate is based on an order of the Security Council and not on Libya’s consent to ICC jurisdiction. Libya’s duty to cooperate fully with the Court under the Security Council resolution is hard to square with the right to challenge its jurisdiction over the matter.

But let’s assume that complementarity does apply to Saif’s case. When Ocampo decides whether Libya’s justice system passes muster for these purposes, he has said he won’t be asking whether Saif can get due process and the appropriate protections for a criminal accused. Ocampo recently said that while he hopes Saif’s trial is fair, “we [the ICC] are not a system to monitor fair trials. We are a system to ensure no impunity.”

Of course, making sure that the perpetrators of these crimes don’t go scot-free is a major goal of international criminal justice. But an equally compelling goal is to prevent a post-conflict free fall into vengeance, vendetta, or victor’s justice. Moreover, the ICC Statute is a treaty, and standard rules about interpretation of treaties in international law require that its complementarity principle be read along with other international obligations. So 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. Even those charged with the most heinous offenses enjoy due process rights under international law.

An obvious cautionary tale is the trial convened of Saddam Hussein and his cohorts by Iraq in a similar transitional context. Neither his security nor those of his lawyers and witnesses could be guaranteed. Hence, the trial was expedited and lacked full guarantees of due process, and ultimately failed to tell the full story of his repressive regime.

And 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. These are special cases where there are special interests in international trials because, from the very start of the Security Council referral of the situation, the concern was “crimes against humanity” and not just those of the Libyan people. What is alleged is his involvement in “conceiving and orchestrating” in a planned policy of systematic attacks on unarmed civilians who opposed the regime, including rapes and murder in order “to quell, by all means, the civilian demonstrations.” The necessary message is to deter similar such exercise of power by other political leaders or those in similar positions of control. Will Libya bringing case against Saif under ordinary criminal law succeed in sending a similar message?

The central point of these trials for the international community to send a strong message against crimes against humanity, including against torture and other humiliating and degrading treatment. What then if such violations are committed in the context of the trial ? Given the fate of Muommar Ghadaffi, what message would it send if in the supposed name of justice—if Saif is tortured in captivity to confess or otherwise abused? What would this do to the standing and legitimacy of the International Court?

Through their lawyers, the family have been threatening to bring a complaint to the ICC against NATO in relation to the death of Muammar Ghadaffi. If local justice for Saif now goes awry on the ICC’s watch, the International Court itself will have much to answer for.

Originally published on www.opiniojuris.org on January 2, 2012.

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