As legal scholars continue to sort out the intricacies of the complementarity regime governing the legal jurisdiction of the ICC and the Libyan national court system, there is a brewing issue of contention on the horizon. Will Libyan officials seek the death penalty for Saif Gaddafi and former intelligence chief Abdullah al-Senoussi?
To restate the obvious, the ICC does not impose the death penalty, nor do any of the international criminal tribunals currently in operation. They all have the same sentencing regime: convicted defendants are eligible for any prison term (including life) that the trial judges determine to be appropriate. However, Libyan officials may indeed decide to pursue a capital case against Saif or Senoussi. The question is whether this fact will complicate – either legally or politically -- the negotiations currently underway between Libyan officials and the ICC Prosecutor, or any ICC determination on its jurisdiction.
Here is one possible argument. The ICC can assert jurisdiction over a case if national courts are unwilling or unable to prosecute a suspect. Traditionally, unwillingness has been interpreted to mean failure to prosecute or failure to adequately punish. So legal scholars have debated whether the ICC could take jurisdiction over a case if the national court prosecuted a defendant but then refused to punish him, or refused to punish him adequately. Think, for example, of giving someone house arrest for genocide, or a monetary fine for crimes against humanity. Most scholars assume that such a blatant miscarriage of justice would be evidence that the state is unwilling to genuinely prosecute the defendant, and would provide a reason for the ICC to take jurisdiction.
Of course, the line is hard to draw here. Consider a hypothetical country that issues a paltry sentence, not because the local judges are in the pocket of a politically connected defendant, but simply because the country has absurdly liberal standards of punishment and believes in a policy of forgiveness. What result then? That’s not an easy case to answer.
Some scholars have gone even further and suggested that the only thing that matters for purposes of complementarity is the sentence that the defendant receives. Kevin Heller has an interesting article expressing this position. However, Kevin mostly deals with the question of whether the local country has punished the defendant enough to satisfy the demands of the Rome Statute’s complementarity regime. But let’s turn the question on its head. Could human rights activists object that Libya is punishing the defendants too much, if and when they are sentenced to death?
One can very well imagine why human rights lawyers would be motivated to make such an argument. The death penalty has been abolished in Europe; abolition is a requirement for any new state seeking admission to the EU; and the death penalty certainly violates the human rights standards of the European Convention on Human Rights (Protocol 13). Human rights lawyers go even further and sometimes suggest that the death penalty violates customary international law or even an emerging jus cogens norm. As I have written before, I believe such claims about a worldwide customary norm to be largely exaggerated, and in particular I find little to no evidence of a binding customary norm regarding the application of capital punishment for international crimes such as genocide, crimes against humanity, and war crimes. The legal analysis ought to be sensitive to the distinction about context, i.e. whether we are talking about abolition of the death penalty for ordinary domestic crimes, or the permissibility of capital punishment for truly exceptional and extraordinary crimes such as genocide.
In any event, the question of how the ICC will view the death penalty issue is of prime concern here. It is one specific example of the larger problem of whether the ICC could assert complementary jurisdiction based on the lack of fair trial rights given to a defendant. Again, this isn’t the issue of being too lenient to the defendant, but rather the issue of not being fair enough. Can this argument be made within the context of complementarity? My sense is that it might be possible to make this connection in the context of the lack of procedural protections, but to make the claim about Libya’s death penalty would require precisely the legal proposition that I have rejected above, namely that the death penalty per se violates a global human rights norm (as opposed to just a regional one in Europe).
As a final note, let me connect this argument with the previous discussion here at LieberCode, opinio juris, and EJIL Talk, over whether Libya is required to send the defendants to The Hague immediately or whether it can wait until the complementarity challenge is complete. Assume for the sake of argument that the defendants are sent to The Hague right now. Then assume that Libya wins its jurisdictional challenge and the ICC Pre-Trial Chamber decides that the defendants should go back to Libya to face trial. Would the ICC be willing to send them back to Libya even though they will face the death penalty?
As a separate question, would the Netherlands (who would have to complete the transfer) be willing to send the defendants back? Arguably Netherlands would be legally prohibited under the European Convention from doing so, and this has been clear at least in a normal extradition ever since Soering v. United Kingdom was decided in 1989. Would the existence of Netherland’s adoption of the Headquarter’s Agreement (a multilateral treaty) trump their obligations under the European Convention and relevant ECHR case law? If so, why?
Of course, one might argue that a Dutch court would conclude that European human rights law is displaced by international law in this context. I would tend to agree, but not so fast. See the famous Kadi judgment from the European Court of Justice (refusing to apply Security Council sanctions on the basis of European human rights law). True, the ECHR refused to entertain an invitation from Milosevic to intervene in his ICTY case, although that was in 2002 (Milosevic v. Netherlands), long before the Kadi judgment, and also did not involve the death penalty, which would arguably rank as extremely important under the ECHR’s proportionality methodology.
So the procedural thicket gets worse...