Arbitrary jurisdiction decisions exacerbate the ICC’s Africa problem

News & Insights
Oct 18, 2013

While Libya’s post-revolution central government struggles to exert control over a restive populace and get the fractured nation’s economy back on track, it has also been fighting a legal battle against the International Court of Justice over the right to try members of the late Muamar Gaddafi’s regime in Libyan courts. The two men in question, Col. Gaddafi’s son Saif al-Islam and former intelligence chief Abdullah al-Senusi, are both subjects of arrest warrants issued by the ICC pursuant to UN Security Council Resolution 1970. The ICC long insisted that the men be tried in the Hague, while Tripoli said it was ready, willing, and able to prosecute them at home. Meanwhile, the central government is still struggling to impose its jurisdiction over Saif al-Islam Gaddafi, currently in the custody of the Zintan militia, who have also refused to surrender him to the ICC.

Last week the ICC ruled al-Senusi’s case inadmissible on the grounds that Libya is pursuing a case against the defendant identical to the ICC’s. In May, the Court ruled on a similar challenge of admissibility in the case of Gaddafi, but reached the opposite conclusion; the reasoning applied in both cases is shaky. The Court’s internal logic likely has more to do with its broader struggle for legitimacy and efficacy. Libya’s new government has a similar set of chips on its shoulder. But in their struggle for jurisdiction, both Tripoli and the ICC may be overlooking very good arguments for compromise. The ICC is facing a broad rebellion against its remit, particularly from African states; the Libya case could present a valuable opportunity to demonstrate a model of collaborative justice. Libya’s government, meanwhile, is eager to prove to its citizens and its potential enemies—as well as to the international community—that it can deliver justice and order. But as last week’s kidnapping of the prime minister demonstrates, order is still elusive, and justice may be equally challenging.

UNSC Resolution 1970, adopted on February 26, 2011, referred the “situation in Libya” to the Prosecutor of the ICC. On June 27, 2011, the Prosecutor issued arrest warrants for al-Senusi and Saif al-Islam Gaddafi. Gaddafi was captured in November 2011 by the revolutionary Zintan Militia, while attempting to flee to Niger. The Zintan Militia has maintained custody of Gaddafi ever since. Al-Senusi was arrested in Mauritania in March 2012 and formally extradited to Tripoli, where he has remained in the custody of the central government.

Tripoli filed a number of motions and requests pertaining to both men with the ICC, the most important of which were challenges to the cases’ admissibility before the ICC. In the case of Gaddafi, the ICC Prosecutor acknowledged that Libya was pursuing a case that is “substantially the same, almost identical” to the ICC’s case. Under the Rome Statute, Libya argued, the fact that national authorities were pursuing such prosecution should have made the case inadmissible to the ICC. The ICC prosecutor responded that two conditions had to be met to determine inadmissibility: that Libya was carrying out the same investigation and prosecution, and that Libya was truly capable of doing so effectively. The Prosecutor accepted that Libya was carrying out such an investigation, and that the state was “genuine” in its intent to do so, but questioned the state’s ability to move forward, especially given the fact that the state had been unable to take custody of Gaddafi from Zintan. On May 31, 2013, the Court’s pre-trial chamber rejected the inadmissibility argument on the grounds that:

Libya is, in the view of the Chamber, unable to secure the transfer of Mr Gaddafi’s custody from his place of detention under the Zintan militia into State authority and there is no concrete evidence that this problem may be resolved in the near future. Moreover, the Chamber is not persuaded that the Libyan authorities have the capacity to obtain the necessary testimony. Finally, the Chamber has noted a practical impediment to the progress of domestic proceedings against Mr Gaddafi as Libya has not shown whether and how it will overcome the existing difficulties in securing a lawyer for the suspect.

Surely enough, Tripoli has thus far been unable to remove Gaddafi from Zintan. But so has the ICC. This is a fact that is completely ignored by the chamber’s decision. It is extremely illogical to argue that a foreign court some 1500 miles from Zintan has a better chance of taking custody of Gaddafi than does the Libyan government.

The ICC’s decision on the admissibility of al-Senusi’s case followed the same logic, and reached the conclusion that Libya was able to effectively prosecute the defendant. The Court’s decision makes a show of establishing that al-Senusi will likely have access to legal counsel in Libya, and that the state has collected or can collect enough evidence to carry out an effective prosecution. But in essence, it is the matter of custody that differentiates these two cases, in the Court’s view. As noted above, from a purely logical point of view, the Gaddafi decision is not logical. If  neither the ICC nor Libya has custody of the defendant, neither should have an advantage where jurisdiction is concerned. It would seem, then, that the Court is thinking more pragmatically than logically; it is harboring the hope that it, or some third party, can make a deal with Zintan that would deliver Gaddafi to the Hague, scoring a coup for the Court. Having no such prospects regarding al-Senusi, the ICC has no reason to continue wasting its resources (note that al-Senusi has appealed the Court’s ruling of inadmissibility). One problem with this approach to criminal justice—an approach in which the ICC’s first concerns are its own prestige and legitimacy—is, simply, that it is inimical to the cause of justice. More practically, though, such behavior degrades both the Court’s status in the eyes of parties and non-parties, and the ability of states to prosecute cases under their own court systems.

Libya is not the only country fighting with the ICC for the right to prosecute its own citizens. The government of Cote d’Ivoire filed documents with the ICC last week challenging the court’s jurisdiction over former president Laurent Gbagbo (the filings have not been made public yet, and it’s unclear from media accounts what exact nature of the challenge is), saying that Cote d’Ivoire should be allowed to prosecute Gbagbo domestically.

The international community has agreed that it needs the ICC, and that the rule of law is a cause worth fighting for. But courts are no good at diplomacy. The ICC has an image problem, particularly in Africa, and its dogged pursuit of the Libya case will not help it win back friends—or more importantly, members—in that continent. Kenya’s leaders are currently working to withdraw that country from the Rome Statute, while Uganda has warned the Court that it will raise the issue of multi-state withdrawal at the upcoming African Union assembly. African leaders—whether cynically or earnestly—accuse the Court of disproportionally targeting Africans. Chastising states like Libya for refusing to hand over old-regime criminals doesn’t soften that perception.

Handled correctly, the Libyan situation could be an opportunity for the Court to earn a bit of good will in Africa. Unlike the Kenya case, where the ICC is trying the state’s sitting president and vice president, Libya represents a case of an African nation throwing off the yoke of despotism, and attempting to bring old oppressors to justice under the auspices of a new revolutionary government that has wide popular support. The ICC has a chance to set a firm precedent in terms of how it interprets the Rome Statute in cases where weak states want—and even need, for political reasons—to carry out prosecutions. The Libyan case may be  the Court’s best chance to establish a system of cooperation with and support for state courts, in place of its default system of usurping jurisdiction based on its own subjective judgment of which courts are and aren’t able to do their jobs.

Libya’s government could also benefit from seeking a middle ground with the ICC. The post-revolution state was born into the good graces of the international community; a turf war over these prosecutions threatens the atmosphere of cooperation and openness that the country badly needs in this transitional period. It was the revolutionary groups who eventually formed today’s government that called for UN and ICC intervention in the first place. Unlike Kenya or Sudan, there is no one in Libya’s government that wants to see al-Senusi or Gaddafi escape justice; a modified arrangement with the Court would demonstrate the government’s willingness to participate in the international law regime while preserving the status of the local justice system. It would also provide a suitable plan B if the likely occurs and the Libyan courts prove incapable of carrying out a fair trial in either case.

Some in the government surely fear a backlash from their constituents, who have fought harder than most nations for sovereignty, if they give up their former oppressors and torturers to a foreign court. The instinct of most Arab and African leaders these days is to eschew such cooperation if it will make them look weak at home. But Libya’s current government has less to lose on this front than most; it is at present assembling a constitutional conference which will draft the terms for its replacement. By the time these trials play out—whether in Tripoli or in the Hague—a new leadership will be in place, hopefully having won legitimacy through national elections. And while there are certainly some forces in Libya that would insist on sovereignty at all costs, most of those who make up the country’s political and activist classes want more than anything to see a functioning, modern state, complete with the international obligations that entails.