Libya & The Death Penalty: Can the ICC Complain About Too Much Punishment?

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.

Libya's Duty to Cooperate with the ICC

Since Libya has declared its preference for trying Saif Gaddafi in a domestic criminal court, the new question on everyone’s mind (including Kevin Heller and Julian Ku), is whether Libya has a duty to send him to The Hague right away.  The question turns out to be not so simple.

As most readers will recall, and as I blogged about previously, Libya has primary jurisdiction and the ICC -- under the doctrine of complementarity -- can only assert its jurisdiction if Libya is unwilling or unable to prosecute him.  No one doubts that Libya is willing.  The remaining question is whether it is able to.  Does Libya have a functioning judicial system capable of the task?

Now here’s the complicated part.  If Ocampo, the ICC Prosecutor, decides to go ahead with his case in The Hague, then Libya will need to officially challenge the ICC’s jurisdiction under the doctrine of complementarity.  Can Libya wait until that challenge is litigated (and they lose) before turning over Saif, or do they need to surrender him to The Hague now before challenging the court’s jurisdiction on grounds of complementarity?

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. 

Be Careful What You Write

As several blogs have already noted (including Kevin Heller at opiniojuris), the ICTY Appeals Chamber has issued a warrant for the arrest of Florence Hartmann, the former ICTY spokesperson of the tribunal who was convicted in 2009 for contempt.  The arrest warrant is only the latest installment in an already bizarre legal saga that raises important issues regarding the implied judicial powers of the tribunal.

After Hartmann retired as ICTY spokesperson, she wrote and published a book (in French) about the working of the tribunal.  The tribunal has a reputation for being quite strict in reviewing books and publications by tribunal employees to ensure that the written material is kosher.  

Hartmann's book contained some exciting material, including a discussion of the ICTY's handling of documents turned over by the Serbian government.  As I explain in the following article, the documents were only turned over by the Serbian government under the condition that the documents remain confidential.  Presumably, the Serbian government did not want the documents admitted into evidence in its own genocide case, Bosnia v. Serbia, which was being heard by the International Court of Justice.  Accordingly, an ICTY Trial Chamber issued a confidentiality order for the documents.

Targeting Americans: Does Citizenship Matter?

When the press reported that Anwar al-Awlaki had been killed in a drone strike in Yemen, the news was greeted with shock that the American-born cleric and self-described member of al-Qaeda had been killed by his own government.  Some called it an extra-judicial assassination.  The controversy only intensified when it was reported that his son (also a citizen) was killed in a subsequent attack, although it is unclear whether his son was a direct target or collateral damage.

Much of the legal controversy surrounded a still-secret Office of Legal Counsel (OLC) memo that concluded that his killing would be legal under both international and domestic law, at least assuming that he could not be captured.  (I'll have more to say about the duty to capture in a future post, following up on an excellent post by my colleague Mike Dorf.)  Although the memo has not been officially released and any discussion of its contents are pure speculation, I do want to express some skepticism that Awlaki’s status as an American citizen matters to the analysis.  In my view, it does not – and should not – matter at all.

The law of war (aka the Law of Armed Conflict) creates an essential binary opposition between two categories: combatants who are subject to the risk of killing and civilians who cannot be deliberately attacked.  There are only a few qualifications to this general scheme.  Civilians who are “directly participating in hostilities” can be killed as well.  Conversely, soldiers who are hors de combat (literally meaning outside the scope of battle) because they are injured, or have surrendered, must be treated like civilians and cannot be deliberately killed.  But the central point remains: in war, killing an enemy soldier is not an act that stands in need of legal justification.  It’s completely legal.

The Gitmo Presumption

A recent decision from the U.S. Court of Appeals for the D.C. Circuit has shed some light on how Guantanamo habeas cases are playing out in the federal district courts.  (For a longer description of the case, see scotusblog).  Although the decision, Adnan Farhan Abdul Latif v. Obama, was recently released in a heavily redacted form, with large chunks of text covered with black markings, the rest of the decision shines a spotlight on a crucial question: what are the legal standards governing a federal court’s review of evidence submitted by the Executive Branch in support of a petitioner’s continued detention?

The defendant, Latif, was successful in his habeas petition before the district court.  On July 21, 2010, a federal judge for the District of Columbia granted his petition, finding that the intelligence report submitted by the government, which was the sole basis for its argument in support of continued detention, was unreliable and was contested by the defendant’s innocent explanation for why he traveled from Yemen to Pakistan and Afghanistan.

Corporate Aiding and Abetting under the Alien Tort Statute

As the Supreme Court is poised to finally resolve the issue of corporate liability under the Alien Tort Statute for aiding and abetting violations of the law of nations, it is worth reflecting on the deeply contentious international jurisprudence on liability for collective criminality.

Since Nuremberg, international tribunals have struggled to balance individual criminal responsibility with the undeniable fact of collective criminality.  The most controversial Nuremberg precedents in this area included their rejection of conspiracy except in cases of crimes against the peace (i.e. aggression), as well as the criminalization of membership in a criminal organization.  Both topics continue to inspire academic controversy.

The ICTY’s solution to the same problem was the adoption of Joint Criminal Enterprise, first announced in Tadic and largely associated with the recently departed great jurist Antonio Cassese.  Although controversial among some scholars, JCE quickly became the preeminent mode of liability charged in almost every indictment at the ICTY.

This international jurisprudence is suddenly of great important to the US Supreme Court, which this spring will hear an appeal of the Second Circuit’s Kiobel decision, which held that corporations cannot be liable under the Alien Tort Statute for aiding and abetting violations of the law of nations.  This case brings into stark relief the uncertainty over how international law deals with collective action in general, and in particular collective action that falls in between the two extremes of state conduct and individual criminal action.  Corporations, conspiracies, and terrorist organizations are all examples of the same general problem.  Although they are undeniably relevant actors in today’s world, they don’t fit neatly in the Westphalian paradigm of public international law.

Karadzic in The Hague

I was visiting The Hague a few days ago for a conference on international criminal procedure and decided to drop by the Radovan Karadzic trial at the ICTY.  Although I have watched countless hours of the trial via the court’s video feed, this was the first time I saw Karadzic – who is representing himself – in person.  A few observations:

First, Karadzic is turning out to be a pretty good lawyer – much better than Milosevic ever was.  Ironically, Milosevic was trained as a lawyer and Karadzic was trained as a psychiatrist (one of the reasons that he passed as a new-age healer in a Belgrade clinic while he was on the run from the authorities for more than a decade).  Milosevic used his trial to make political speeches largely addressed to a domestic constituency – and to history – rather than address the judges with explicitly legal arguments.  True, Karadzic is making some political arguments and is trying to settle old scores with enemies (e.g. NATO, Richard Holbrooke), but he is also couching his claims in a legal framework.