The ICC Rejection of Libya’s Admissibility Claim Undermines Complementarity

By Joseph Kaifala

Published on June 15, 2013

On May 31, 2013, the International Criminal Court (ICC) rejected Libya’s claim to maintain jurisdiction in the case against Saif Al-Islam, son of former Libyan leader Muammar Gaddafi, and Abdullah Al-Senussi, former head of the Libyan Military Intelligence. Both accused are currently detained in Libya. Even though Libya is not a state party to the Rome Statute, which established the ICC, the Court has jurisdiction because the UN Security Council (UNSC) using its referral power under article 13(b) of the Rome Statute referred Libya. In February 2011, at the height of the Libyan conflict, the UNSC adopted Resolution 1970, which referred the situation in Libya since February 15, 2011 to the ICC Prosecutor.

In June 2011, the ICC issued an arrest warrant for the accused, Saif Al-Islam Gaddafi, based on reasonable grounds that he is criminally responsible under article 25(3)(a) of the Rome Statute for the crimes against humanity of murder and persecution. Libya filed a challenge to the admissibility of the case under article 19 of the Rome Statute. The Court was established on the fundamental principle that it is complementary to national criminal jurisdiction. It is important to note that the Court does not have primacy in the investigation or prosecution of crimes within the statute. Therefore, with regards to the principle of complementarity in paragraph 10 of the Preamble and article 1 of the statute, the Court has jurisdiction only when a state is “unwilling or unable genuinely to carry out the investigation or prosecution.”

Libya challenged the Court’s jurisdiction by submitting that in accordance with complementarity, the case is inadmissible “on the grounds that its national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts of murder and persecution, committed pursuant to or in furtherance of state policy, amounting to crimes against humanity.” However, the Court found that Libya did not provide “enough evidence with a sufficient degree of specificity and probative value to demonstrate that the Libyan and ICC investigations cover the same conduct and that Libya is able genuinely to carry out an investigation against Mr. Gaddafi.”

The Court, in reaching its conclusion, applied its own created “same person/same conduct” test, which requires that for a case to be inadmissible under article 17(1)(a) of the Rome Statute, “the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.” Since there is no dispute as to the individuals charged, the Court in this case focused on the “same conduct” part of the test. The Libyan charges against the accused, if properly carried out, will in no doubt achieve the same goals as charges of crimes against humanity, and the Court concedes that there is no requirement under the statute that the national investigation be aimed at prosecuting ‘international’ crimes as long as such investigation covers the same conduct. However, it went on to conclude that “Libya has fallen short of substantiating, by means of evidence of a sufficient degree of specificity and probative value, the submission that the domestic investigation covers the same case that is before the Court.”

Libya has submitted a list of crimes for which Saif Al-Islam is being investigated, which includes: intentional murder; torture; incitement to civil war; indiscriminate killings; misuse of authority against individuals; arresting people without just cause; and the unjustified deprivation of personal liberty pursuant to Articles 368, 435, 293, 296, 431, 433, 434 of the Libyan Criminal Code 1953. It therefore quibbles the mind to think that the Court deems these investigations of insufficient probative value to cover charges of crimes against humanity. The Court properly concedes that there is no requirement that national investigations be geared towards prosecution of international crimes, since the object and purpose of the Rome Statute is to put an end to impunity for the most serious crimes of international concern through the primacy of national criminal jurisdiction. In fact, Libya does not owe the Court any justifications as long as it is willing and capable genuinely to investigate or prosecute.

The issues of willingness and capacity bring us to the actual test of admissibility under article 17(1)(a), which requires the Court to determine a case inadmissible unless a “state is unwilling or unable genuinely to carry out the investigation or prosecution.” The Court in this case does not reach the “willingness” requirement, perhaps because the fact that Libya is contesting jurisdiction shows willingness to use its national criminal system to try the accused for crimes committed at home.

Therefore, in order to determine the inability of a state to investigate or prosecute under article 17(3), “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.” It is true that Libya continues to face difficulties of nation building after a civil war, but such difficulties do not constitute an unavailability of its national judicial system. The fact that the “national system cannot yet be applied in full” does not rise to the level of incapacity to carry out investigation or prosecution. The ICC itself rendered its first judgement a full decade after it was established, and it didn’t even have to reconstruct a nation. Must international criminal law usurp the national criminal jurisdiction of states merely on the premise that their national systems cannot yet be applied in full just a couple of years after national revolutions without proof of unwillingness to investigate or prosecute?

Both the object and purpose of the Court to end impunity for crimes of international concern and the principle of complementarity embedded in the Rome Statute prevent the Court from meddling into the affairs of states that have demonstrated willingness or capacity to carry out national investigation or prosecution. Such judicial schemes are sometimes part of the overall processes of national healing and nation building after major revolutions. Libya presented a good faith argument in its admissibility claim that the country is committed to post-conflict transitional justice and national reconciliation, and the process “reflects a genuine willingness and ability to bring the persons concerned to justice in furtherance of building a new and democratic Libya governed by the rule of law.” This argument should have been enough for the Court to grant Libya the benefit of the doubt.

On appeal, the Chamber should overturn the decision and allow Libyans to apply their judicial process; otherwise the principle of complementarity, which correctly grants primacy to national criminal jurisdictions will fall short of its meaning, and states will refuse to cooperate with the Court in the fight against impunity for crimes of international concern. Unless national proceedings are clearly prejudicial, a sham, or fail to meet international standards of due process rights, it cannot be the province of the Court to determine the nitty-gritty aspect of a national judicial process.

The Author

Joseph Kaifala is founder of the Jeneba Project Inc. and co-founder of the Sierra Leone Memory Project. He was born in Sierra Leone and spent his early childhood in Liberia and Guinea. He later moved to Norway where he studied for the International Baccalaureate (IB) at the Red Cross Nordic United World College before enrolling at Skidmore College in upstate New York. Joseph was an International Affairs & French Major, with a minor in Law & Society.

He holds a Master’s degree in International Relations from the Maxwell School at Syracuse University, a Diploma in Intercultural Encounters from the Helsinki Summer School, and a Certificate in Professional French administered by the French Chamber of Commerce.

Joseph was an Applied Human Rights Fellow at Vermont Law School, where he completed his JD and Certificate in International & Comparative Law. He is recipient of the Vermont Law School (SBA) Student Pro Bono Award, Skidmore College Palamountain Prose Award and Skidmore College Thoroughbred Award.

Joseph was a 2013 American Society of International Law Helton fellow. He served as Justice of the Arthur Chapter (Vermont Law School) of Phi Alpha Delta Law Fraternity International. He is a member of the Washington DC Bar.

Article picture: ICC building. Picture by Vincent van Zeijst. Source: Wikipedia