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Monday, November 21, 2011

Libya & Positive Complementarity

The capture of Saif al-Islam Gaddafi, as well as yesterday’s capture of former intelligence chief Abdullah al-Senoussi, will be the first big test of the ICC and its "positive complementarity" function. 

The ICC’s jurisdiction is governed by the principle of complementarity – the ICC only takes cases when there is no local judicial system that is willing and able to prosecute the relevant individuals.  After the central government in Libya announced that Saif would be transferred to the ICC, local militia leaders who actually have custody of him quickly chimed in and expressed a preference for a local trial in a domestic Libyan court. 

What domestic Libyan court, you ask?  That’s a good question, because the elder Gaddafi famously limited the development of civil institutions in Libya, under the pretense that sovereignty resided directly with the Libyan people who ruled themselves without the interference of a “government.”  (Scare quotes here for obvious reasons.)  Consequently, the judicial system in Libya is underdeveloped.  Can it handle a complicated post-conflict trial that adjudicates both domestic and international crimes?  Certainly not yet. 

The ICC Prosecutor, Luis Moreno-Ocampo, will be in Tripoli later this week to speak with Libyan officials about the location of the trial.  He’ll want to hear assurances that the Libyans will be able to mount a rigorous trial that adequately addresses the allegations of crimes against humanity and also protects Saif’s (and Senoussi’s) right to a fair trial. 

In the best of all possible worlds, Ocampo will not only get those assurances, but these assurances will also be transformed into reality in the form of a rigorous trial procedure.  This can be counted as a success for the ICC, even if it does not hold a single trial in the Libya case.  This is called “positive complementarity."  The ICC has the capacity to improve domestic legal systems for the better as local officials promise more accountability and better procedural protections in order to prevent the ICC from taking over a case. 

As a jurisdictional matter, the ICC is supposed to be indifferent as to the location of a trial.  Under this argument, a trial in The Hague is no better than a local trial; an international trial is only a second-best option when no viable local trial is available.  As a political matter, though, everyone knows that the legitimacy of the young ICC will be strengthened if it takes on more cases. 

Consequently, it is uncertain if Ocampo will be satisfied by any of the promises made by the Libyan central government.  He might still insist on ICC involvement.  He will probably push for a compromise, such as holding a short trial in The Hague for Saif just on allegations of crimes against humanity during the beginning of the uprising, and send him back to Tripoli for a national trial on crimes committed during his father’s regime, including the looting of Libya’s oil wealth for the family’s personal gain. (Another possibility is holding an ICC trial in Tripoli, a possibility which isn't explicitly foreclosed by the Rome Statute, though it would be a logistical challenge). 

Of course, Ocampo's bargaining power is constrained by the fact that he doesn't have the defendants.  They're in Libya.  The other problem with a compromise plan is that it requires a “short” trial in The Hague.  That’s not something the ICC has done yet.  And I’m sure the Libyans can read a calendar just like anyone else.