Denver Journal of International Law and Policy

Earlier this summer, a US District Court issued sentences in a international maritime piracy case that involved four US victims. The defendant was not an actual pirate but a ransom negotiator for the piracy financiers.

A Somali man who acted as a ransom negotiator for pirates who seized a yacht last year and killed four American hostages has been given 12 life sentences by a US federal judge.

Mohammad Shibin was convicted in April on 15 charges including piracy, hostage taking, kidnapping and conspiracy. He was paid $30,000-$50,000 (£19,000-£32,000) in cash for his negotiating services, according to a federal indictment.

In a courtroom in Norfolk, Virginia, Judge Robert Doumar of the US district court sentenced Shibin to serve 10 concurrent life sentences, two consecutive life sentences and two 20-year sentences and ordered him to pay $5.4m in restitution. The Guardian (UK)

Judges of the International Criminal Court
(Christian Science Monitor)

The case illustrates a key difference between domestic courts and international tribunals when exercising jurisdiction over international crimes.  To my knowledge, no international tribunal has ever issued consecutive sentences.  As I recently blogged, the International Criminal Court issued three sentences of 12, 13, and 14 years in its first concluded trial against Thomas Lubanga.  However that Tribunal ordered the sentences to be served concurrently.  They could have issued the sentences to run concurrently up to a maximum of 30 years.  Article 78(3) of the Rome Statute pertains to sentencing and it provides:

 3.  When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

It has always struck me as curious that the drafters of the Rome Statute would want to impose sentencing limits of judges in cases as serious as genocide and other mass atrocity cases.

A sentence of consecutive life sentences such as issued in Shibin is obviously symbolic but nonetheless a powerful statement about the nature of the crime.  Take for example the Dos Erres Massacre case in El Salvador in which four soldiers were convicted of murdering 201 people and sentenced to 6060 years.  As the BBC noted

The sentence is largely symbolic as the maximum actual [maximum] term is 50 years …

The cases at international tribunals often deal with much more egregious crimes – the Ituri region in Lubanga saw 60,000 persons killed.  And yet tribunal judges have been unwilling to issue symbolic sentences that reflect the fact that mass atrocities are not ordinary crimes and should not involve ordinary sentences.

After ten years, the International Criminal Court issued its first verdict on March 14th, finding Congolese warlord Thomas Lubanga guilty of three child soldier related war crimes offenses: conscripting, enlisting, and using child soldiers. The trial phase of the case concluded this summer when the ICC sentence Lubanga to 14 years in July. The paltry sentence is a shaky conclusion to a case that has been troubled from the beginning.

Thomas Lubanga at the ICC

Controversy first appeared when the Prosecution team charged Lubanga only with the child soldier offenses. The prosecution surprisingly did not indict Lubanga with the substantive crimes committed by the child soldiers, namely thousands of instances of murder and rape. It is standard fare for tribunals to charge military commanders for the crimes committed by their subordinates, and so the Lubanga indictment seemed conspicuously narrow and unrepresentative of the mass crimes in the Ituri region of the Congo in which 60,000 were killed. And the indictment rankled many because of its failure to reflect the widespread commission of gender crimes.

The start of the trial saw the proceedings immediately halted over allegations of impropriety by the prosecution in its reliance on investigative “intermediaries.” It turns out the prosecution paid Congolese civilians to help them in the Congo. The “intermediaries” helped prosecutors identify and locate witnesses during its investigation, a practice which the court found in the trial judgment to be a misplaced delegation of responsibilities. The court indicated that several intermediaries may have facilitated false testimony. The prosecution did itself no favors by stubbornly defying direct court orders to disclose the names of intermediaries to the Lubanga defense team.

Congolese Child Soldiers
(Boston.com)

Despite this rough beginning, an appropriate judgment and sentence would have gone a long way toward erasing the memory of the ignominious start. But there would be no such luck. The court issue sentences of 12, 13, and 14 years for the “enlisting”, “conscripting”, and “using” counts respectively, a sentence that does not seem commensurate with Lubanga’s role in the mass slaughters or the enslavement and brutalizing of children. Adding insult to injury, the court ordered the sentences to be served concurrently and imposed an actual sentence of 14 years. The court had the option of ordering the sentences to be served consecutively — up to a 30 year maximum. Even better, it could have issued a life sentence.

The BBC reported at the time of the sentencing that Mike Davis, from the human rights organisation Global Witness, said that “the sentencing of Lubanga was an ‘important development’ but that it sounded like ‘a rather low sentence in relation to the crimes that he committed.’” Congolese government spokesman Lambert Mende “agreed that he should have been jailed for longer…” Mende diplomatically offered that the meager sentence was at least a “positive signal” for peace in the region.
In his sentence, Judge Adrian Fulford went out of his way to compliment Lubanga for his conduct and cooperation during the trial and critical of the prosecution. And Fulford lambasted the prosecution.

I am not defending the prosecution in Lubanga, but it should never be the case that a prosecutor’s conduct ever serves as mitigation in the sentence of a war criminal (just as the conduct of the defense attorney can never constitute an aggravating factor). Criminal sentences can only be issued on the merits of the case. Punitive measures against a prosecutor should be an entirely independent action.

Receiving credit for his six years of pre-trial detention, the 51 year old Lubanga has eight years remaining on his sentence – a term that could be significantly lessened for good behavior. It is a sweet deal for Lubanga, but the latest in a long string of bitter pills the Congolese have had to swallow.

At the very least, one hopes Lubanga’s deal is sweet enough to cause Sudanese President al Bashir to rethink his refusal to submit to the court’s jurisdiction.

Libya Post-Qaddafi (The Guardian)

As the dust from the armed intervention in Libya settles, the dangers of outright regime change are laid bare.  This has brought about a certain amount of what might be called buyer’s remorse on the part of organizations and governments previously supportive of the humanitarian intervention in Libya.  One of the main problems of regime change is the power vacuum left by the previous regime.  Once the previous regime is removed, the ensuing vacuum opens up space for various previously repressed or insignificant power brokers to take prominence in the new order.  In the case of Libya, removing the Qaddafi regime precipitated the rise of local government and militias at the expense of the central government.  Additionally, the sudden release of oppressive pressure from the top has led to acts of retribution based on longstanding grudges.  These acts of retribution have been both organized and unorganized, and human rights organizations, such as Amnesty International and Human Rights Watch, accuse the Libyan anti-Qaddafi militias of gross and widespread human rights violations.  Homelessness, violence, and lawlessness are widespread and acts of retaliation against the Tuareg population are ubiquitous.

In the last few days, the rift between the central government and the local power brokers hit the world stage with the detention of the International Criminal Court’s delegation.  The delegation was on its way to visit Saif al-Islam Qaddafi, Muammar Qaddafi’s son, when a local militia group detained them in the western town of Zintan.  Although the central government and the ICC have demanded their release, the militia has refused.  The refusal lays bare the divisive issue of prosecution of the previous regime.  Although the ICC has asserted jurisdiction over members of the previous regime, the Zintan militia and other factions within the Libyan state have expressed their desire to have members of the previous regime tried in Libyan courts.

The ICC has a statutory responsibility of complimentarity to domestic jurisdictions; that is, the ICC may only take jurisdiction over a case if the domestic courts are unwilling or unable to prosecute.  Although various human rights organizations, and the ICC itself, have expressed doubts about the capability of the Libyan judicial system and, moreover, the state of human rights within the Libyan state, various factions within Libya assert that the judicial system is willing and able to prosecute members of the previous regime.

Other divisions since the end of the Qaddafi regime are becoming apparent, as relations between the majority Arab population and the minority Tuareg population demonstrate.  Indeed, whereas the speedy removal of Colonel Qaddafi was hailed as a victory for the principle of the responsibility to protect, recent attacks by local and national militias, particularly against the city of Tawargha, have been decried as war crimes, undermine that progress.  These crimes might also fall under the jurisdiction of the ICC, though a continued relationship with the new Libyan regime would be necessary in order to bring the violators to justice.  Such a continued fruitful relationship seems unlikely at this point.

These divisions underline the importance of the humanitarian aspects of any humanitarian intervention.  It is apparent that armed intervention in support of a civilian revolution is insufficient to fulfill humanitarian goals, and that, as demonstrated in Afghanistan and Iraq, regime change must be followed with extensive support to rebuild infrastructure and civil and political institutions.  Invoking a responsibility to protect during the armed intervention and then stepping back to allow the inevitable violent effects of regime change to take their natural course is irresponsible at best, and criminal at worst.  The responsibility to protect must apply not only to vicious dictators, but also to well-meaning intervening states.  That is to say, in order to be a meaningful, coherent policy, any state invoking the responsibility to protect must include a plan to address the consequences of their actions, including the prosecution of members of the previous regime and the ensuing violence and retaliation.

On April 4th, the International Criminal Court (“ICC”) ordered Libyan authorities to surrender Moammar Gadhafi’s son, Seif al-Islam Gadhafi after the Libyan transitional government requested a second postponement in surrendering him.  Libyan rebel fighters arrested Seif al-Islam Gadhafi in November 2011 when he was attempting to flee to Niger and the country means to try him in their own court system first.  In its ruling, the ICC requested that Libya “proceed immediately with the surrender,” but Libyan authorities intend to challenge the jurisdiction of the court.

Seif al-Islam Gadhafi

The Pre-Trial Chamber of the ICC issued an arrest warrant against Mr. Gadhafi for crimes against humanity on June 27, 2011. The Libyan National Transitional Council confirmed the arrest of Mr. Gadhafi in November 2011, but requested a postponement of the Surrender Request until they could complete national proceedings regarding crimes charged against Mr. Gadhafi. In March, the Pre-Trial Chamber dismissed the postponement request.  Later in the month, Libya filed another postponement request.  The Court rejected this postponement request as well, holding that it had jurisdiction over Libya and needed to “start making arrangements in preparation for the surrender of Mr. Gadhafi to the Court without further ado.”

Libyan authorities are currently building a special prison in Tripoli where Gadhafi will be held while the militia is holding him in the western town of Zintan.  Once the prison is complete and Gadhafi has been moved, his trial will begin.  However, many people fear that Gadhafi will not receive a fair and safe trial in Libya.  In addition to the anger felt by Libyan citizens against Gadhafi, a Libyan court could sentence Gadhafi to death for persecuting and killing protestors during the uprising, while an ICC conviction could only result in a prison term.

While Libyans want to see justice in their own country for their citizens, Liz Evenson, senior counsel with Human Rights Watch’s International Justice Program has stated that it is “imperative that Libyan authorities start preparing to surrender Seif al-Islam … This is what cooperation with the court means.”  If Libyan authorities do not hand Gadhafi over to the ICC, it is possible that the matter will be brought before the Security Council, as a Security Council Resolution has ordered Libya to cooperate with the ICC.

On March 14^th, the International Criminal Court (ICC) delivered it first judgment, finding Thomas Lubanga guilty of three child soldier war crimes offenses.  The verdict is a welcome victory in the fight against impunity and it is some measure of justice for the 60,000 persons killed in the Ituri province in Eastern Congo.  But the judgment highlighted the ICC’s painstakingly slow pace to date – the ICC has been in existence for ten years and so far they have indicted 15 persons and achieved one conviction.  And it should be noted this is not a final conviction, but only a trial verdict.  To be fair, three other accused are in the midst of trials.

Thomas Lubanga at the ICC

Just how much have these 15 indictments and lone conviction cost the ICCs signatories?    The cumulative total of the ICC’s budgets over the initial decade is $900 million.  By way of comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) spent $695 million in its first ten years, and the International Criminal Tribunal for Rwanda (ICTR) spent about a $1 billion.   So at a glance the ICC is not out of line with its brethren institutions.

However, the ICTY and ICTR both indicted far more suspects for that money.  The ICTY indicted 161 persons, ¹ while the ICTR indicted 91 persons.²  I didn’t have time to research every indictment, but my memory was that most of those indictments had been issued by the ten year mark.

Let’s break those numbers down a bit more.  Based on the numbers above, the cost per suspect indicted at the ICTY, regardless of the outcome of the case, was $4.3 million, it was $11 million at the ICTR and $60 million at the ICC.

I am not going to address the overall cost of international tribunals in this blog. Suffice it to say that they are too expensive and too inefficient in my view.  What I would like to talk about here is the ICC relative costs to the ICTY and ICTR ad hoc tribunals.

While we can expect that the ICC will approach the cost structures of the ad hocsover time, the ICC will never be able to match their operational costs (particularly the lower ICTY costs) for several reasons.

First, the ICTY and ICTR were both mandated by Security Council resolutions, and thus the major political and legal questions about their right to adjudicate matters was resolved before their work began.  At their inception, they had the luxury of focusing their energies on criminal investigations rather than jurisdictional challenges.  The ICC is a wholly different animal.  It must establish its right to exercise its jurisdiction in each situation it chooses to “officially” investigate, and must walk a diplomatic tightrope along the way.  (The only exception to that rule is when the Security Council refers cases to it, as it did with Sudan and Libya.)

Second, the ICTY and ICTR both had clear and specific mandates — to prosecute those most responsible for offenses in defined conflicts.  The ICC, on the other hand, has a global mandate with an obligation to consider crimes committed in any of its 139 signatory territories plus any others referred to it by the Security Council.   The ICC gets thousands of unofficial communiques each year.  It must conduct a cursory review of these communiques regardless of whether it decides to launch an official investigation.

Third, the ICTY and ICTR had one-time ramp-up costs and learning curves.  The ICC goes through this ramp-up process for each official investigation.  The ICC must establish information and logistical beachheads in each situation, creating an investigational infrastructure for each official investigation.  Key witnesses have to be located, relationships formed and nurtured and local politics mastered. Even small details such as safe hotels for accommodation have to be sorted out.

Fourth, the ICC’s broad mandate brings with it an immense problem of language. The two ad hoc tribunals had to contend with difficult regional languages – Kinyarwandan in Rwanda and several Balkan languages in Yugoslavia.  The ICC is obligated to function in all of the languages relevant to the conflicts it investigates: there are 200 languages are spoken in the Congo, 72 in the Central Africa Republic, 45 in Uganda, 142 for Sudan, 79 in The Ivory Coast and 69 in Kenya.  The ICC could breathe easy with Libya where only 9 languages are spoken.  Of course, many people in the Congo speak a lingua franca, Swahili or Lingala.  But many witnesses have stronger language capabilities in their local tongues.

We have given the ICC a complicated mandate to achieve and it is no surprise that it is taking it a while to hit its stride.

In a landmark decision, on March 14, the International Criminal Court issued its first verdict and found Thomas Lubanga Dyilo guilty of enlisting and conscripting children under the age of 15 years to be soldiers and using them to participate actively in hostilities in the context of an internal armed conflict.

There are some critics of the decision itself, arguing that Lubanga was only a middle-level official in the Ugandan and Democratic Republic of the Congo (DRC) conflict itself and that the ICC Office of the Prosecutor failed to indict senior level-officials involved in the killing of a reported 50,000 Ugandan and Congolese civilians, as well as the enlistment and conscription of child soldiers. For the most part, however, the decision remains uncontroversial.

Below are a background of the conflict, a description of the counts against Lubanga, and an overview of the legal theory under which he was convicted.

Background of the Conflict

Thomas Lubanga

In September 2000, an inter-ethnic war began in the Ituri region of the DRC, with fighting and savage killings occurring between the Lendu and Hema tribes.  This internal conflict consisted of a regular series of violent battles, largely between a Hema group, the UPC/FPLC (Union de Patriotes Congolais/ Forces Patrotiques pour la Libération de Congo), led by Thomas Lubanga, and other military or rebellion groups.

Uganda, with its army the UPDF (Uganda People’s Defense Force), was also involved in the armed conflict occurring in the DRC, both directly  and indirectly. As early as September 15th, 2000, the Ugandans supplied support to the UPC/FPLC and other DRC armed groups, including the recruitment and training of soldiers, providing of weapons, and actual organization of several of the previously mentioned armed groups.

During these conflicts, children from villages throughout the DRC were conscripted and enlisted as soldiers for the UPDF and various rebel groups from villages, trained in the art of war, and directly used in the hostilities.

The Counts Against Lubanga

Thomas Lubanga Dyilo was charged with enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la Libération du Congo [Patriotic Forces for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities in the context of both an international armed conflict and a non-international armed conflict, between early September 2002 and June 2, 2003 (punishable under Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute).

Enlistment is the act of recruiting a child, under the age of 15, voluntarily into an armed force or group. A child’s consent during enlistment is not a valid defense. The Prosecution offered evidence that beginning at least as early as July 2000, the active recruitment of soldiers began, for purposes of officially creating the UPC, the armed branch of the FPLC. Many children joined the UPC/FPLC to earn money, seek revenge, protect themselves or their families, or because their parents offered them for enlistment upon request or demand from UPC/FPLC commanders.

Conscription is the act of forcibly recruiting a child, under the age of 15, into an armed force or group. During the conflicts in Uganda, children were forced into military service for the UPC/FPLC or threatened with force into joining. The Prosecution provided evidence that children were abducted or arrested by armed soldiers and brought to training camps. Once at the training camps, the recruits were threatened with beatings or death for not obeying orders or attempting to desert.

Co-Perpetration Overview

Co-perpetration is codified in Article 25(3)(a) of the Rome Statute and generally establishes that any individual responsible for making a contribution to the furtherance of a crime can be held vicariously responsible for the contributions of all others involved in the crime. In addition, the co-perpetrator may be considered a principle to the entire crime. Principals to a crime need not physically carry out an objective element of the offense, but rather can be found liable if they control or mastermind the commission. This type of liability is referred to as co-perpetration based on joint control.

Angelina Jolie at the ICC

In order to establish liability under a theory of co-perpetration based on joint control, it is necessary for the prosecution to prove certain objective and subjective elements essential to the claim. The objective elements of co-perpetration liability can be established by demonstrating 1) the existence of a common plan or agreement between two or more persons; and 2) that each co-perpetrator provided an essential contribution, resulting in the realization of the objective elements of the crime. The subjective elements may be proved by establishing that 1) the accused fulfilled the subjective elements of the crime in question; 2) the accused and his co-perpetrators were mutually aware and mutually accepted that implementing their common plan may result in the realization of the objective elements of the crime; and 3) the accused must be aware of the factual circumstances enabling him or her to jointly control the crime.

The Prosecution in the Lubanga case alleged that also involved in the common plan were Thomas Lubanga’s top commanders, Floribert Kisembo (FPLC Chief of Staff), Bosco Ntaganda (the FPLC Deputy Chief of Staff for Military Operations), Chief Kahwa, and commanders Tchaligonza, Bagonza, and Kasangaki.  The Prosecution argued that these five individuals exercised joint control over the commission of the objective elements of the crimes. Evidence supporting a common plan or scheme was circumstantial but indicated a common plan based on the widespread nature of the activities, including: the widespread recruitment and conscription of child soldiers, numerous training camps for child soldiers, and evidence of families fleeing Uganda to avoid their children being abducted for conscription purposes.

Additionally, Thomas Lubanga did not attempt to hide the fact that he used child soldiers as personal bodyguards. Numerous witnesses testified during the trial that it was common knowledge in Ituri that Thomas Lubanga and his family used child soldiers as bodyguards. On several different occasions, Thomas Lubanga was witnessed attempting to recruit children from Hema villages by appealing to tribal elders.

The Chamber’s Decision

The Chamber concluded that the Prosecution had proven all of the elements of the Indictment crimes beyond a reasonable doubt. Interestingly, the Chamber did note that an international armed conflict had not been sufficiently established relating to the crime base and the UPC/FPLC’s involvement in the conflict, and accordingly, the Chamber convicted Lubanga solely on crimes perpetrated within the context of an internal armed conflict.

On interesting side note, American actress Angelina Jolie attended the public reading of the verdict today. She commented that, “The delivery of the ICC’s first verdict today is an important moment for the Court, for the Democratic Republic of Congo, and for the rule of law. Perhaps today’s verdict of guilty provides some measure of comfort for the victims of Mr Lubanga’s actions. Most of all it sends a strong message against the use of child soldiers.”

By: Anne Bingert

Sources: The New York Times, The Guardian

The International Criminal Court (ICC) made its sixth arrest last week, arresting the former president of the Ivory Coast, Laurent Gbagbo.  Mr. Gbagbo is the first former head of state brought before the ICC.

Mr. Gbagdo appeared for his first hearing in front of the Court on Monday.  During the hearing, Mr. Gbagdo accused his captors of lying to him.  Mr. Gbagbo, who has been under house arrest for the past seven months in the town of Korogho, stated he thought he was being taken to a hearing on embezzlement charges in a local court when he was served an ICC arrest warrant.  Gbagdo was taken into custody and flown overnight to The Hague.

In a statement in the New York Times, the ICC has said Mr. Gbagbo “allegedly bears individual criminal responsibility for four crimes against humanity: murder, rape, persecution and inhuman acts.”  Specifically, Gbagbo is accused of being responsible for the violence that erupted after he lost the presidential election earlier this year.  Refusing to leave office, Mr. Gbagbo used security forces to suppress opposition supporters resulting in the death of at least 3,000 people.  He was captured by opposition forces, backed by the French and United Nations, in April.

Mr. Gbagbo was not the only one surprised by his sudden arrest and transfer to The Hague.  Across the Ivory Coast, supporters reacted with shock.  Mr. Gbagbo’s lawyers have called the arrest illegal and intend to challenge the proceedings.  Habiba Toure, one of Mr. Gbagbo’s lawyers has called the arrest warrant illegal; “In principle, an arrest warrant is delivered to a free individual or a person on the run, which was not the case for Mr. Gbagbo because he was already in the hands of Ivory Coast officials.”  Mr. Gbagbo’s supporters also criticized the French for their role in the arrest, stating that this is a “neocolonialist trial” and the ICC a tool of the French to “empower friends and punish the ones who don’t follow along.”

ICC prosecutors have until June before they will submit a summary of evidence to the judges who will then decide whether there is enough evidence to proceed to trial.  There will be several smaller hearings in the meantime during which Mr. Gbagbo’s lawyers can challenge his arrest and move for his release.

The International Criminal Court (ICC) is the midst of a process to select a successor to its first prosecutor, Luis Moreno O’Campo.  The governing body of the ICC, the Assembly of States Parties (ASP), is seeking to elect a candidate by consensus vote.

The list of candidates has apparently been paired down to two candidates: Fatou Bensouda and Mohamed Chande Othman.  Ms. Bensouda is from The Gambia and is the current Deputy Prosecutor at the ICC.  Mr. Othman is Tanzanian.  He was the Prosecutor at the East Timor Tribunal, the Chief of Prosecutions at the Rwanda Tribunal and he is the current Chief Justice of Tanzania.

Fatou Bensouda

The Women’s Initiative for Gender Justice (WIGJ) produced a recent study of the qualifications of the two finalists, focusing on the differences in their litigation experience.   The gist of its report is that Ms. Bensouda has more courtroom experience before international tribunals than Mr. Othman and hence is better qualified than Mr. Othman.

I have worked at two international tribunals, Rwanda and Yugoslavia.  In my view, the WIGJ study is fundamentally wrong.  The main criteria the ASP should be valuing in its next prosecutor is managerial excellence, not courtroom skill.

The Prosecutor does not need to appear in court at all and frankly they shouldn’t.  There are good examples of why this is a bad idea.  The Prosecutor’s core responsibility, the one that dwarfs all others, is to create and run an office with sky-high standards of accountability, excellence and transparency.

I could care less whether the Prosecutor can effectively cross-examine a witness or not.  The ICC hires highly skilled people specifically to fill that role.  What is paramount is that the prosecutor is a spectacular manager of people.  Comprise on that quality and you build-in inefficiency, delay and budgetary excess.

It matters not if the Prosecutor can make a great opening statement if the office is in shambles and morale is low.   Here is what does matter:  The Prosecutor should not be encumbered by ego.  The Prosecutor should be secure enough in his or her own abilities to covet subordinates who are more talented than they are, to value their honest criticism and to admit mistakes.

By: Brandi Joffrion

Saif el-Islam al-Gadhafi

Libyan rebels captured Seif al-Islam el-Qaddafi, Moammar Gadhafi’s son, this past Saturday.  Within hours after his capture, the International Criminal Court’s (“ICC”) prosecutor, Luis Moreno-Ocampo, announced that he would be traveling to Libya becaus Seif-al-Islam is wanted by the ICC for charges of crimes against humanity.  However, Libya is not a member of the ICC Rome Statute, and it is arguable that Libya may not have an obligation under the U.N. Security Council Resolution 1970 to cooperate with the ICC’s regulations.  If Libya were to cooperate, it would have to hand over Seif-al-Islam or, at the very least, recognize that Libya is within the ICC’s jurisdiction to determine whether Seif-al-Islam can, and should, be tried in Libya’s domestic courts.

The rebels from the town of Zintan, who captured Seif-al-Islam, and the unelected interim government of Libya want him tried in Libya, where he would face the death penalty.  This is assuming, of course, that he is not murdered before trial, as occurred to his father.  The ICC, on the other hand, forbids capital punishment and would therefore not seek the death penalty against Seif-al-Islam.  Additionally, concerns have been raised that if Seif-al-Islam is not tried in Libya, Libyan citizens would be denied due justice.

Despite these concerns, it is argued that Seif-al-Islam should be tried in the ICC in order to prevent a repeat of the depraved proceedings that were brought against the Iraqi leaders.  In those cases, the leaders never received due process since they were never tried for their crimes of genocide due to the United States’ insistence that Saddam receive the death penalty.  According to the ICC’s statute, a sovereign nation is to be given priority to try its own citizens and the ICC is only to act as a court of last resort in the instance that the local justice system is in a state of “substantial collapse” or unable to operate in an impartial manner.  Currently, Libya has no working court system that will satisfy international standards and it plans to enforce the death penalty without regard to ICC standards.  Moreover, the Libyan people have demonstrated their willingness to take justice into their own hands without resorting to the justice system, as exemplified through Gadhafi’s death last month at the whim of his captors.

However, Libyan citizens could acquire justice through the ICC if it were to try Seif-al-Islam.  It is mandated that all ICC trials be televised, and either part or all of Seif-al-Islam’s trial proceedings could be held in Libya even if tried by the ICC.  Furthermore, it is possible to hold two trials: one trial in the ICC, in which the ICC would charge Seif-al-Islam with crimes against humanity, and a second trial in Libya’s domestic courts, in which Seif-al-Islam could be tried for a wider scope of crimes, which could include anything from corruption and abuse of state funds to murder and torture.

Trying Seif-al-Islam within the ICC would also set precedent for future Libyan officials who are in violation of international law and who are indicted for crimes against humanity.  As one of the “most serious crimes of concern to the international community as a whole,” it is argued that crimes against humanity should take precedence over any individual charges of murder or corruption that could be alleged within domestic courts.  In addition, the ICC provides for a fair and transparent process within the international criminal justice system by permitting the accused to raise defenses and summon witnesses, and by empanelling impartial judges, as well as requiring the heightened burden of proof  of proof beyond a reasonable doubt for any individual who may be convicted by the ICC.

Luis Moreno-Ocampo

On November 2, 2011, the I.C.C.’s Chief Prosecutor, Luis Moreno-Ocampo, announced that because of allegations of crimes committed by NATO forces, “allegations will be examined impartially and independently by the Office.” Although the report concerning these allegations will not be presented until May 2012, the investigation alone shows the importance of accountability for all the parties involved in the Libyan revolution.

Damien McElroy of The Telegraph notes that reports continue to emerge that NATO air strikes violated the scope of the Security Council’s resolution by targeting and killing civilians. For example, before the final days of the regime, pro-Gaddafi forces alleged that NATO killed more than eighty-five civilians in an air strike in the town of Ziltan. Furthermore, one of the regime generals, Khaled Hemidi, filed a lawsuit in a Belgian civil court accusing NATO of killing his wife and three children in separate air strike incident. The validity of such reports remains to be seen. It highlights, however, that each party will be investigated to determine responsibility for the violations.

Nonetheless, much of the international community views the military intervention as the right action. In a recent article, the Economist noted that “[i]t is difficult to imagine a stronger case for military intervention to prevent war crimes . . .” and that “it was clear from the beginning that the NATO intervention in Libya was driven by the broad commitment of Western governments and their publics to aiding democratic transitions and stopping murderous repression.” If such widespread support was the foundation of the military intervention into Libya, then an investigation and subsequent finding of an international violation could de-legitimize all subsequent military interventions taken by regional organizations.

Regardless of the alleged violations, NATO’s presence remains hotly debated by Libya’s interim government. The Libyan interim leader asked NATO to prolong its presence through December in an effort to continue its air patrol and place military advisors on the ground amid worry that remaining loyalists might regroup and resume fighting. Nevertheless, the Security Council unanimously voted to end foreign military intervention in Libya on October 29, effectively ending all foreign intervention.

In sum, the statement made to the Security Council highlights the importance of placing the responsibility of any crime committed on the right party. However, the problem remains three-fold. First, if it is determined that NATO did violate the scope of SCR 1970 by targeting and killing civilians, it remains to be seen whether the International Criminal Court will have the capability to bring a claim against NATO. Second, if such a claim is brought, it could diminish the ability of regional organizations to act by using force in similar cases. Finally, although Libya remains stable, there is still a chance that foreign intervention might be necessary. Regardless of whether NATO intervention led to civilian deaths, many would argue that the end of NATO involvement came too soon following the death of Qaddafi.