The International Criminal Court’s two Libya cases, against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, appear potentially poised to end in Libya, in an amnesty and an execution: neither would be an appropriate result.

After the UN Security Council referred the situation in Libya to the ICC, the Court rendered divergent rulings on complementarity— that Saif Gaddafi should be tried at the ICC, while Senussi could stand trial in Libya. Saif was never transferred, as he reportedly was held by a militia in Zintan and not governmental authorities. Both men were then sentenced to death in a flawed domestic trial in Libya. Now, new, unconfirmed news reports suggest that Saif has been amnestied. Senussi appears still to be under a death sentence.

From death sentence to amnesty for Saif

In her recent May 26 briefing to the U.N. Security Council, the chief prosecutor of the ICC Fatou Bensouda had announced new efforts to get Saif transferred to The Hague – asking the Pre-Trial Chamber to direct the ICC Registry to send the request for Saif’s arrest and surrender directly to the head of the militia. This approach may prove moot if reports are true that he was amnestied (and one report, now contradicted, was that he had been released). These events then present the concern of him potentially escaping accountability, depending on whether or not his ICC case would proceed if there is a (valid) domestic amnesty of him. This presumably will now be litigated at the ICC – that is, what becomes of the ICC case after a flawed domestic trial in Libya that was never supposed to happen because he was supposed to have been transferred, and in light of a possible domestic amnesty that may or may not be valid.

The need to reopen admissibility regarding Senussi

Disappointingly, in her May briefing, the Prosecutor did not announce any intention to revisit complementarity (admissibility) in the Senussi case. This is unfortunate. When the ICC ruled that Libya could try him, there were before the Court only initial indications that his trial in Libya might face fairness challenges — lack of counsel in early phases of the proceedings. The Court did not reach other issues, finding them speculative.

The actual group trial that included both Senussi and Saif was riddled with fair trial violations:

• inadequate assistance of counsel;
• lack of adequate time and facilitates to prepare the defense;
• lack of an opportunity to present sufficient defense witnesses;
• lack of an opportunity to cross-examine prosecution witnesses;
• lack of impartial and transparent proceedings; and
• lack of a reasoned ruling—the failure to make individualized determinations as to individual criminal responsibility.

Additional fair trial violations may include denial of the right to remain silent, to be promptly informed of the charges against one, and to challenge the evidence presented. Saif was also largely tried in absentia, and there are allegations that both were tortured.

The ICC Appeals Chamber unfortunately set a very high standard before it would consider due process violations in a national court process when evaluating admissibility. It required a showing that national proceedings were “so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the accused.” This, in the author’s view, is too stringent a standard, especially where the death penalty is involved; the Court’s ruling merits reconsideration.

Absent reconsideration, however, given all the fair trial violations that occurred after the Court’s ruling, this standard is arguably met — new information reveals that due process was indeed egregiously violated when compared to the appropriate international standards. Furthermore, the Court should err on the side of caution, in a death penalty case, which warrants even more exacting adherence to due process. Thus, both the Office of the Prosecutor (OTP) and Senussi’s council should move to reopen admissibility. The death sentence against him suggests the urgency of doing so.

Complementarity & the death penalty – the need to adopt a policy of requesting diplomatic assurances

Beyond the complication of the two Libya cases, States Parties should revisit the issue of complementarity and the death penalty. There is currently nothing in the Rome Statute to preclude the judges from ruling a case “inadmissible” at the ICC, thereby permitting trial in a country that applies the death penalty. Yet, most Rome Statute States Parties oppose the death penalty, and would never extradite someone to stand trial in a country that uses the death penalty without assurances that it would not be used.

Because Senussi was never in The Hague, it didn’t look like the ICC was transferring him to a country that applies the death penalty, because there was no transfer involved. But giving the green light to his trial in Libya has the same result. In negotiating the Rome Statute, states may have agreed to allow national countries to use all the penalties on their books when exercising complementarity, yet, as more and more countries reject use of the death penalty, States Parties at the upcoming Assembly of States Parties meeting should request the Court to adopt a Policy of requesting diplomatic assurances of non-use of the death penalty in any ICC cases ruled inadmissible.

It is troubling for the ICC to play a role in allowing domestic executions. UN-backed tribunals such as the Yugoslav and Rwanda Tribunals did not apply the death penalty, nor does the ICC when a case is still before it. The Rwanda Tribunal even waited until Rwanda abolished the death penalty before transferring its rule 11bis cases back to Rwanda.

If one (or both) of the Libya cases ends in execution, this will be a bad outcome:

–for the UN Security Council, which made the referral,

–for the Court, which ruled that Libya could try Senussi (and failed to get Saif transferred),

–for States Parties (particularly those that do not permit the death penalty), in failing to recognize their role in creating an institution that can have a hand in domestic executions when it rules cases “inadmissible,” and

— not least, for the accused, as the Libyan trial was by all accounts palpably flawed.

For the same reason – that the trial was palpably flawed – it is also troubling if Saif’s case ends with a domestic amnesty (an outcome we can expect the OTP to fight). In neither case, was justice done.

Regardless of the outcome of these cases, the linkage between the ICC and the death penalty remains in the Rome Statute and warrants revisiting.

–Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.

(This op-Ed originally appeared on IntLawGrrls and can be accessed here.)

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.] A significant event happened quietly at the UN on June 27: Palestine deposited the thirtieth instrument of ratification of the International Criminal Court’s crime of aggression amendment, with 30 ratifications being the required number for activation. However, one more vote to activate the amendment, to occur after January 1, 2017, is required by the ICC’s Assembly of States Parties for the ICC to be able to exercise jurisdiction. Thus, Palestine’s deposit did not cause the amendment to become operational, although it brought it a step closer to the activation vote planned for December 2017.
There may be some confusion on the meaning of Palestinian ratification among those not steeped in the jurisdictional nuances of the crime of aggression amendment negotiated in 2010 in Kampala, Uganda. Although one might think that this is all about the Palestinians trying to create jurisdiction over Israel vis-à-vis the crime of aggression, that is not how it will work.
The crime of aggression amendment has a different jurisdictional regime than what currently exists under the ICC’s Rome Statute concerning the crimes of genocide, war crimes and crimes against humanity. If a national of a non-State Party (e.g., Israel) commits any of those crimes in the territory of a State Party, there would be ICC jurisdiction.
The crime of aggression amendment — whether for good or ill (depending on one’s perspective) —per 15bis(5) keeps crimes committed on the territory of, or by the nationals of, non-States Parties entirely out of its jurisdiction for purposes of State Party and proprio motu referrals (article 15bis). This mean that Israeli nationals or crimes committed on Israeli territory will be outside the ICC’s crime of aggression jurisdiction. This then has a bizarre consequence here – that Palestine can ratify the crime of aggression amendment, not “opt out” of jurisdiction (something a State Party can also do per 15bis(4)), and, even after the crime activates, the ICC still could not prosecute Palestinian nationals who commit aggression against Israel, since Israel is a non-State Party. A Handbook compiled by some of the Kampala drafters clearly states: “Non-States Parties are thus excluded both as potential aggressor and victim States.” The crime of aggression amendment thus has significant jurisdictional loop-holes, and will create quite a narrow jurisdictional regime, even once activated. Stated more positively, it creates a consensual regime.
While activation also will activate ICC jurisdiction if the U.N. Security Council makes referrals (under article 15ter), it is considered unlikely that the US would permit alleged Israeli aggression to be referred.
So, the 30th ratification brings the world one step closer to having crime of aggression jurisdiction activated before the ICC, but it does not have direct ramifications for Israel – whether that was the Palestinian goal or not.
At this point, the reader may well wonder – is this Kampala amendment worthwhile with all these jurisdictional loopholes? I will argue it is: activation of the crime will undoubtedly cause states to take pause and ponder more seriously the potential consequences of starting an illegal war, and this is a good thing – even if ICC jurisdiction will not cover the specific case in question; also, states may implement the amendment into their domestic laws, and that may create jurisdiction – giving further pause to states inclined to commence an illegal war. The goal of course is not to generate ICC cases, but to influence state behavior positively.
The crime of aggression, of course, is hardly a novel concept. It criminalizes what is already illegal under article 2(4) of the U.N. Charter, and is similar in concept to the prosecutions of the International Military Tribunal at Nuremberg, which prosecuted war of aggression. In fact, states were working already over 100 years ago on this concept, when in 1913 they founded the “Peace Palace” in The Hague, Netherlands — in an attempt to have states litigate and arbitrate over issues of war, rather than go to war.
A few states have concerns about activation — the US for example, although it too as a non-State Party is exempt from jurisdiction vis-à-vis its nationals and crimes on its territory. Yet, the process is proceeding, with the 30 ratifications accomplished, and several other States Parties in the process of ratifying the amendment. US concern that humanitarian intervention would be criminalized may be something of a “red herring” – first, the US does not appear to have any clear and consistent policy of humanitarian intervention (for instance, as the UK has) and second, because, as at least most scholars seem to agree, humanitarian intervention would not be covered by the crime, as it would not constitute a “manifest” Charter violation. (The crime has a significant “threshold” in requiring that there be a “manifest” Charter violation [.pdf]; this means that only very serious cases that are unambiguously illegal , could be prosecuted.) The crime of aggression, in these ways, is rather conservative — having both jurisdictional loopholes and this high threshold.
There is still a chance, that, at some point, the ICC judges will find that Palestine is not a “state,” and thus was incapable of ratifying the Rome Statute, and similarly incapable of ratifying the crime of aggression amendment. (Judges always have jurisdiction to review their own jurisdiction – so regardless of the UN’s acceptance of the instruments of ratification, the ICC Judges could view the issue differently.) This would have little impact on the process of activating the crime, since several ratifications are in the pipeline, and will undoubtedly happen prior to December 2016. (There must be a year’s delay after the 30th ratification, for activation, along with the ASP vote).
Overall, while the Palestinians may have hoped to make a strong political statement, what the ICC crime of aggression tries to do is take the issue of aggression more out of the political process and into judicial hands. How one feels about this may depend on one’s confidence in the ICC, which, despite some setbacks, has gradually been proving itself to be a responsible, judicial institution, warranting confidence and support.

 

 

[This article originally ran in Opinio Juris and can be found here.]