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Friday, September 7, 2012

Libya vs. The ICC

In the past few months I've discussed at length the fight between Libya and the ICC over who will conduct trials of former Gaddafi regime leaders, including his son Saif as well as his former intelligence chief, Senussi.  Libya has been insisting that it is both willing and able to prosecute them, a fact which -- if correct -- would deprive the ICC of jurisdiction under the principle of complementarity.  

However, that claim was seriously weakened by the fact that the Libyan government had custody of neither men.  Saif was in the custody of the Zintan rebels, who were refusing to transfer him to the custody of the central government.  And Senussi was being held by officials in Mauritania.  It is very hard to argue that a domestic prosecution is possible when the defendants are not in custody (although this assumes that an in absentia trial does not satisfy complementarity, which is an interesting argument).  This suggested that the ICC could take jurisdiction over the case, although the Office of the Prosecutor (at least under former prosecutor Moreno-Ocampo) has shown little interest in asserting jurisdiction over the case, preferring to let the Libyans take the lead.

Two days ago Mauritania extradited Senussi to Libya.  This now paves the way for the first domestic trial of a top former Gaddafi official, and I suspect that Libyan officials will now try to fast-track a prosecution.  Unfortunately, there are several obstacles that remain, and I'm skeptical that a trial can be set up any time in the near future.  There is no functioning judiciary so far as I can tell, at least not one that a fully developed legal system would recognize as a sophisticated system of criminal law.  The only way Libya can pull this off is with substantial input from international experts and foreign monitors, but there will be substantial political pressure to keep the process dominated by local characters.  

The real question here is how long it is appropriate to wait for such a system to be created.  So far as I know, there is no judicial precedent that sets a specific time frame on the Rome Statute's standard for complementarity.  If it takes two or three or five years for Libya to get a trial ready, does that indicate that Libya is unable to prosecute?  At some point, the future trial will look like the ever-advancing horizon, always in sight but never attainable.  The ICC can wait, but it won't wait forever.


Mark Kersten said...

Enjoyed the post as always. I agree with you that there are serious challenges and that the lack of a fully independent and functioning judiciary is one of them. That being said, there are developments which suggest that an indepedent judiciary is beginning to function and express itself. The clearest example of this occurred in June, when Libya's Supreme Court ruled against the NTC's Law 37 which had made it illegal to glorify or praise the former regime. The Court ruled that Law 37 violated the right of Libyans to free speech under the Constitutional Declaration of August 2011. As importantly, the NTC accepted the Court's decision without political interference. This is a significant and, I think, hopeful sign of the potential for an legitimately independent judiciary being created in post-Gaddafi Libya.

Jens David Ohlin said...

Mark, that's a very helpful piece of information. I agree with you that it suggests that the rule of law is developing in a positive direction in Libya.

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