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Tuesday, June 19, 2012

Legitimation Crisis?

Two situations in two different parts of the world are seriously threatening the integrity of international criminal justice right now.  Both are worrisome, though there is hope that both situations might be satisfactorily resolved.  We shall see.

First, as many of you know, four ICC defense counsel were taken into custody in Libya after meeting with Saif Gaddafi.  According to Libyan officials, the four lawyers were accused of carrying coded messages as well as spying and recording devices.  It isn’t clear to me whether any of this material is – or ought to be – prohibited when a lawyer visits a client. 

Libya’s relationship with the ICC has been one of continued and unprecedented surprises.  Libya is holding Saif and wants to prosecute him for crimes against humanity, though the ICC has issued an arrest warrant for him.  Libya is challenging the arrest warrant and is invoking their primary right to prosecute him, instead of the ICC, under the doctrine of complementarity.  As readers know, I engaged in a debate with Kevin Heller at Opinio Juris and Dapo Akande at EJIL Talk over whether Libya was required to send Saif to The Hague until the ICC made a final decision about Libya’s challenge to the court’s jurisdiction.  Dapo and I both argued on our respective blogs that Libya did not, and the ICC Pre-Trial Chamber agreed with Dapo and me.  So Saif stays in Libya for now.

The situation is doubly strange because outgoing ICC Prosecute Luis Moreno-Ocampo publicly expressed his support for a Libyan prosecution, instead of an ICC trial – something that clearly rankled some of the ICC judges.

The situation is triply strange because, unlike most disputes between a country and the ICC, the defendant in this case actually wants to be sent to the Hague.  Quite desperately, in fact.  Saif has no interest in being put on trial in Libya, where he might face the death penalty or unpleasant prison conditions.  In The Hague, he’ll be entitled to comfortable detention in the ICC facility there, which as a comparative matter is quite nice, and the excitement of an ICC trial would probably be intellectually more stimulating than whatever awaits him in Tripoli.  In fact, Saif fancies himself an intellectual, having been awarded a doctorate from LSE until his dissertation was found to have been written by someone else.  Oops.  My guess is he will enjoying sparring with the ICC judges if he ever gets there.

So this was the background when the ICC defense counsel showed up in Libya.  The standard view over at Opinio Juris and EJIL Talk is that the ICC lawyers are entitled to immunity under international law.  Although Libya is not a signatory to the international Privileges and Immunities Agreement that governs the treatment of court personnel, the Security Council long ago passed a resolution requiring Libya to cooperate with the court’s investigation.  Presumably, that includes not arresting court personnel when they try to visit their clients.   This conclusion is consistent with my overall view of the Security Council’s Chapter VII authority.

The one wrinkle here is that Saif, and his lawyers, are actually being held by the Zintan Brigade, which captured Saif and has never let him go.  It is unclear to me how much authority the Libyan central government actually has in this situation.  In the end, I suspect the Brigade will extract maximum leverage before turning any of them over to anyone.

Obviously, the court’s functioning requires that its staff be allowed to conduct its business.  Some time ago, the U.S. Congress passed a law authorizing the President to use military force to rescue any American personnel put before the ICC – a law that was famously dubbed the “Hague Invasion Act.”  The question is how far the UN and the rest of the world community is going to go to do the reverse – rescue ICC personnel.

The second institutional problem facing international criminal justice is the announcement yesterday that the Mladic trial at the ICTY is being put on hold again – this time indefinitely.  Some time ago the Office of the Prosecutor gave an opening statement in the case, but its presentment of the evidence was delayed when the court ruled that it had failed to disclose key documents to the defense.  The case was supposed to restart this week, but unfortunately, the same thing happened again.

The ICTY cannot afford another delay in this trial.  Mladic is 70 and he claims that his health is precarious, and this might not be posturing on his part.  The usual time frame from the commencement of a trial to a written judgment is usually several years.  So Mladic could conceivably die before it finishes. 

If Mladic were acquitted, that would be a major defeat for the Office of the Prosecutor.  But if Mladic dies before a trial is even completed, that will be a defeat for the entire tribunal – and will bring back uncomfortable memories of the Milosevic fiasco.  That being said, part of the blame belongs to the ICTY Trial Chamber, which refused the prosecutor’s request to segment the trial into phases and conduct a first mini-trial on Srebrenica before dealing with the rest of the counts.  The court ruled that this would prejudice the rights of the defendant. 

Let’s hope that the Mladic trial can be restarted soon and that Saif gets a trial –wherever – with some defense counsel at his side.

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