“I think it is inevitable that, by virtue of who my father is,
the way I live my life is not identical to the way
that an ordinary Libyan citizen would. It is, of course,
true that I am afforded certain privileges which
other Libyan people might not be.”
Seif Al-Islam Gaddafi, cited in Lindsay Hilsum, Sandstorm
In the coming weeks the International Criminal Court (ICC) is expected to make a much-awaited decision regarding the Libyan Government's admissibility challenge presented in the case against Seif Al-Islam Gaddafi.
The dispute over whether Seif Al-Islam should be tried in The Hague or in its native Libya has sparked a heated debate amongst human rights advocates, international law scholars and those with a general interest on international justice.
In this piece I engage with such debate aiming to offer a critical analysis of the role of the ICC as a supra-national court in securing accountability for grave crimes. This doing, I intend to challenge the view submitted by many according to which due process standards should be determinant in deciding the outcome of an admissibility issue.
A test for complementarity
Seif Al-Islam Gaddafi was indicted by the ICC for crimes against humanity in June 2011. He was arrested in November 2011 and has since then been awaiting trial in a detention facility in Zintan. His case is remarkably important as it constitutes the first real test to assess how the ICC will interpret the principle of complementarity.
The principle, a cornerstone of the Rome Statute, affirms that the ICC is a court of last resort that shall act only where national courts have failed to act, or when they are unwilling or unable genuinely to carry out the investigations or prosecution.
Libya is reluctant to surrender jurisdiction to the ICC and claims the right to try Mr. Gaddafi at the national level. On 1 May 2012 it has submitted an admissibility challenge under Article 19(2)(b) of the Rome Statute, claiming that it was already investigating the case and that it is willing and able under its national judicial system to proceed with the case and to try the accused.
This dispute on case admissibility raises the question of whether and under what conditions the ICC should defer a case to domestic courts after an arrest warrant has been issued but before it gained custody over the defendants.
The issue dwells with some of the fundamental, unresolved legal questions that define the relationship between national and international justice under the complementarity regime and is likely to have a long-standing effect on future decisions of the court.
How to establish admissibility?
Article 17 of the Rome Statute regulates case admissibility at the ICC through a two-steps test. First, the Court needs to establish whether an investigation is on-going and whether the scope of the investigation covers the same conduct for which the accused is wanted by the ICC.
Second, the Court has to take into consideration whether the state is genuinely willing and able to investigate or prosecute. An assessment in this respect involves a complex decision which is to be made on a series of factors – among which lies the issue in focus in this short piece, namely the ability of the Libyan justice system to handle the proceedings.
In October 2012 the Pre-Trial Chamber I has held a public hearing in which Libya was invited to present its arguments concerning the nature and extent of its on-going investigation. In December the Chamber issued a decision in which it required Libya to supply further information and evidence that the case is being investigated.
In their responses to Libya’s further submission, both the Prosecutor and the Defence were in agreement that Libya had failed to provide sufficient evidence to satisfy the Pre Trial Chamber’s questions and to prove that it is investigating the same conduct for which Mr. Gaddafi is wanted by the ICC.
On the second limb of the admissibility test, instead, the Court is internally divided. On the one hand, the Prosecutor argues that Libya is willing and, in the circumstances of the case (in the midst of a post-conflict transition and having availed itself of external assistance) able to conduct the proceedings.
The Defence, on the other hand, argues that Libya should be considered unable to carry out the proceedings given the absence of fundamental guarantees for fair proceedings and the lack of progress concerning the appointment of counsel to Mr. Gaddafi.
Their disagreement, in large part, is in relation to the weight to be attributed to fair trial guarantees: to what extent should due process (or lack thereof) be determinant in deciding the outcome of an admissibility challenge?
Tripoli or The Hague?
This question has not only internally divided the Court but has generated also a fervent debate amongst a variety of stakeholders.
On the one side we have those supporting a step-in of the ICC in the name of fair trial guarantees, among whom we find academics, international law experts, human rights advocates such as Amnesty International, Lawyers for Justice in Libya and Redress; as well as political support groups siding with Seif Al-Islam and, last but not least, Seif Al-Islam himself.
On the other side (together with the Libyan State itself), amongst those who view more favourably a national solution stand , in a sort of complicit silence, Security Council members.
After an initial enthusiasm, the Council indeed has shown virtually no support for the case being tried at the ICC – notwithstanding its initial involvement in passing Resolution 1970 (2011) which referred the situation in Libya to the ICC. In addition, some argued for the trial to be held in Libya as a matter of policy goals.
In this view, a decision on admissibility should be reached not only on the basis of the admissibility grounds per se, but also in view of the Court's underlying purpose. This means adopting a proactive approach to complementarity, aimed at developing national systems and to ensure long-term sustainability.
Case admissibility and the principle of equality
The debate which has sprung around the issue is rich, engaging and elucidates valid arguments, yet it misses one important point. Here I argue that in the case of states willing to prosecute, as Libya has shown to be, due process standards should not be determinant in deciding whether a case is admissible in the name of equality concerns.
Aside from complementarity, another defining feature of the functioning of the ICC is the gravity threshold, which operates as an express limitation on the Court’s jurisdiction and as a guide to the exercise of prosecutorial discretion.
This means that the ICC is to function as a court of last resort set up to try only those most responsible for grave crimes. Generally, they are elite people holding top-ranking positions of power in government at the time when the crime was committed.
To use a common metaphor, the cases which can make it to the ICC are no more than the tip of the iceberg of those wanted for accountability. The reality of transitional justice, indeed, is much wider – and particularly so in situations of profound political transformations, such as the one Libya has faced since 2011 – and the ones awaiting prosecution are numerous.
Whilst the ICC had issued arrest warrants against three top-ranking regime figures, at least another three trials against high-level regime figures are being conducted in Tripoli. All of the cases have raised the same due process concerns that have been raised in relation to Mr. Gaddafi’s case.
On these premises, conceding admissibility to a supra-national court in the case of Mr. Gaddafi on due process grounds may result in the Court operating a policy of differential treatment for “elite criminals” who were lucky to be high-ranking enough as to enjoy the luxury of a fair trial in The Hague.
It is difficult to envisage under the Rome Statute a role for the ICC as a court mandated to rescue elite individuals accused of international crimes from trials falling short of international standards in contempt of less high-profile individuals.
When interpreting the provisions of the Rome Statute the ICC judges must also take into consideration the commitment set forward in the Preamble to guarantee lasting respect for and the enforcement of international justice.
In the case of transitional, post-conflict states willing to prosecute, I take this to mean that the Court's interpretation of complementarity should be in line with the concept of “positive complementarity”.
This concept enshrines a commitment on behalf of the Court to assist national sjudicial systems to ensure the large-scale improvement of due process standards as opposed to the surgical action of rescuing a single accused from unfair trial. Libya has repeatedly asked for assistance and is willing to engage with the various forms of support that the international community may offer.
To conclude, granting Gaddafi’s son the right to a fairer trial than all other regime figures in virtue of his former position as de facto Prime Minister would pose serious issues as a matter of equality before the law between elite and less elite figures. A decision of the Court in this direction may have repercussions in virtually any transitional context where the ICC may be engaged in the future.
As far as the principle of equality is concerned, letting “elite criminals” afford fairer trials in Europe because of their positions in power is inconsistent with the aims and purposes of justice, and it is highly questionable whether inequality before the law may (and should) find space under the provisions of the Rome Statute.