R2P, the ICC and the Libyan arrests, by Carsten Stahn*

Context

The arrest of Saif al-Islam Gaddafi and Abduallah al-Senussi constitutes a test case for international justice and the idea of ‘shared responsibility’[1], embraced by Heads of State and Government at the 2005 World Summit Outcome in the framework of the ‘Responsibility to Protect’ (R2P) doctrine. In February 2011, the UN Security Council adopted a unanimous resolution (Resolution 1970) to refer the situation in Libya to the International Criminal Court (ICC) after the failure of the Gaddafi regime ‘to protect its population’.[2] This resolution marked the first incident in which the ICC was expressly recognized in Council practice as a core element of preventing and adjudicating atrocities in line with the ‘R2P’ concept.[3] The R2P principle is based on the idea that domestic authorities maintain primary responsibility to ‘protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.[4] It contains at the same time a commitment to an international response in accordance with the United Nations Charter, should ‘peaceful means be inadequate and national authorities manifestly fail’ to live up to their responsibility.[5] With the decision authorizing the use of force ‘to protect civilians and civilian populated areas under threat of attack’[6] and the referral of the situation to the ICC under Chapter VII of the United Nations Charter, the protection against atrocity crimes took a central place in the collective response to the Libyan conflict. This type of reaction is likely to be perceived as a possible precedent for other contexts. With the Security Council referral, international justice has become one of the primary means of constraining violence and securing accountability, not only in the context of hostilities, but also in ensuring justice after conflict. The debate over the proper forum for proceedings against Saif al-Islam Gaddafi and Abduallah al-Senussi puts the interplay between domestic and international justice to a crucial test.

The Security Council and complementarity

When the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) were established by the Security Council at the beginning of the 1990s, they were endowed with primacy of international jurisdiction[7] and had limited leeway to engage with domestic jurisdictions or refer cases to domestic institutions. They only did so after the end of hostilities and the start of trials, namely mainly in the context of their ‘completion strategy’.[8] In the context of the ICC, interaction with domestic judiciaries is at the heart of the system of justice of the Statute, which embraces the principle of complementarity.[9] The Court’s mandate is based on a division of responsibility between international and domestic authority. This leaves room to defer proceedings to national institutions. Domestic justice enjoys priority, and can be  successfully invoked as an alternative to ICC proceedings, if it is supported by genuine investigations and prosecutions of international crimes, including application of principles of due process under international law.[10]

This framework applies to the Libyan context, although Libya is not a Party to the ICC, [11]  because the situation was referred to the Court by the Security Council under Chapter VII of the United Nations Charter.[12] The Security Council highlighted the prospects of interaction with domestic justice initiatives in the context of its 2005 Darfur referral, when it encouraged the ICC to support international cooperation with ‘domestic efforts’ to combat impunity[13] and to consider the possibility of ‘conducting proceedings in the region’.[14] Now, these prerogatives are once again in the spotlight in the Libyan context.

The ICC and domestic proceedings

The ICC has not yet determined a firm policy or strategy with respect to engaging with parallel or competing proceedings at the national level. In the situation of the Democratic Republic of the Congo (DRC), the ICC considered the possibility of holding ICC trials in situ, following a self-referral of the situation by the DRC and proclaimed inaction by domestic authorities after transfer of defendants to the Court. The option ‘to sit in a State other than’ the host State is foreseen in the legal framework of the Court.[15] Despite initial proposals from the Bench[16], the Court refrained from using these powers, mostly due to concerns related to the security and protection of Court officials, witnesses or victims.

In the context of the investigation and prosecution of electoral violence in Kenya, the ICC Prosecutor used domestic ‘consent’ as a leverage and yardstick for the initiation of ICC proceedings. The Prosecutor agreed with Kenyan authorities to prioritize domestic justice, subject to certain conditions. The conditions were specified in Agreed Minutes[17] which set out clear benchmarks and timelines for investigations and prosecutions by Kenyan authorities.[18] The Office of Prosecutor decided to proceed with ICC investigations and prosecutions on its own motion for the first time in the history of ICC proceedings,[19] after domestic authorities failed to comply with the terms of the ‘complementarity’ arrangement.    

In the Libyan context, the situation is slightly different. The Court does not act on its own motion, but on the basis of a referral by the Security Council. This mandate makes the Court an agent of peace-maintenance. The Pre-Trial Chamber has issued warrants of arrest. An international ‘case’ exists, and judicial proceedings have started. This has an impact on subsequent action. There is less leeway to negotiate modalities and timing of justice outside the Courtroom. A deferral of proceedings to Libyan authorities following the issuance of warrants of arrest, and in the absence of prior international custody over defendants, would mark a novelty in international criminal justice. How the Court and the international community will deal with this issue is decisive for future cases.

The most radical option to bar the exercise of ICC jurisdiction is a request by the Security Council not to proceed with further investigation or prosecution for a renewable 12 month period. This possibility is mentioned in the Council referral[20] and Article 16 of the ICC Statute. This option has come under growing criticism in recent years. In 2010, African Union members encouraged the Council to use Article 16 in order to suspend the warrant of arrest against Omar al-Bashir and facilitate the peace settlement in Sudan.[21] This initiative failed to gain sufficient support inside the Council, partly due to U.S. opposition and  concerns that interference in ongoing ICC cases would run counter to the stated aims of the resolution and compromise the Court’s independence.

A second possibility to seek priority for domestic justice lies with domestic authorities. As a State with jurisdiction over crimes on the basis of territory and nationality, Libya may use the mechanisms under the Statute to challenge the admissibility of ICC proceedings.[22] Such a motion has suspensive effect[23] but it does not affect the validity of previous ICC action or decisions.[24] As reiterated by the ICC, the final determination on admissibility rests with Chambers.[25]

The Statute sets a relatively high burden for an admissibility challenge. The Rules of Procedure and Evidence of the Court provide that a State may inter alia share information with the Court showing that its courts ‘meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct’, or that the case is ‘being investigated or prosecuted’.[26] Investigations or prosecutions must in particular, target the same ‘case’[27], which has been defined by the Court as encompassing ‘both the person and the conduct’ charged.[28] This test might pose difficulties for domestic investigators and prosecutors, since domestic charges may have to reflect similar incidents, links or context associated with atrocity crimes (e.g., crimes against humanity[29], war crimes[30]).[31] If domestic trials are held, they only bar ICC proceedings under the ‘double jeopardy’ rule, if they relate to ‘conduct also proscribed’ under the core crimes provisions of the Statute.[32] If a domestic case relates to different conduct, the Statute typically foresees consultations between the ICC and a requested State under the cooperation regime to facilitate the sequencing of proceedings.[33]

The ICC Statute does not include the death penalty in its sentencing regime. It is controversial to what extent potential human rights violations to the detriment of the defendant should be taken into account in the determination of admissibility assessments under the Statute since they concern primarily jurisdictional issues.[34] An argument to that effect might be based on Article 21 (3) which provides the applicable law of the ICC must be interpreted and applied consistently ‘with internationally recognized human rights’.[35] Rule 11 bis of the ICTR Rules of Procedure and Evidence specified specifically that a case shall only be referred back by a Trial Chamber if the accused will receive a fair trial and if ‘the death penalty will not be imposed or carried out’. [36] Accordingly, the Appeals Chamber of the ICTR held that ‘Chamber designated under Rule 11 bis must consider whether the State has a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure’.[37] But neither the ICC Statute, nor the complementarity provisions under Article 17 were directly intended to serve as a general incentive for the harmonization of sentencing provisions in domestic jurisdictions (let alone in non-State Parties), or to rule out the death penalty per se.

At the Rome Conference, States were eager to maintain State sovereignty and different legal cultures, including divergent views on penalty regimes – a position expressly reflected in Part 7 of the ICC Statute.[38] They also sought to prevent that the ICC turns into a general human rights court.  Contemporary developments concerning the death penalty, as well as the fact that other international courts such as the ICTR or the European Court of Human Rights[39] have recognized the death penalty as a bar to transfer of suspects might put this traditional understanding of admissibility under the ICC Statute to a test.[40] In particular, once a defendant has been surrendered to the Court, the Court would face difficulties to transfer a person to a state where the death penalty is practiced, in line with existing human rights jurisprudence on the prohibition of inhuman or degrading treatment or punishment.       

Finally, domestic authorities might ask the Prosecutor to withdraw[41] or amend charges before the ICC.[42] The closest precedent is the situation in Uganda where the option of the  withdrawal of the arrest warrant against Josef Kony was discussed in the peace talks with the Lord’s Resistance Army. In such situations, the final decision over such a request lies with the Pre-Trial Chamber.[43] If the Prosecutor comes to the conclusion that there is no longer a ‘sufficient basis to prosecute’ since the ‘case is inadmissible’, he cannot simply terminate proceedings, but must inform the Pre-Trial Chamber and the Security Council of ‘his or her conclusion and the reasons for that conclusion’.[44] Any such assessment is likely to be based on the inadmissibility criteria set out in Article 17. The two logical  steps in this inquiry have been set out by the ICC Appeals Chamber:

‘[I]n considering whether a case is inadmissible under article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability’.[45]

It is unlikely that the Office of the Prosecutor would invoke the ‘interests of justice’ clause to defer to domestic proceedings.[46] This would run counter to previous practice according to which there is a ‘presumption in favor of investigation or prosecution’[47] and a distinction between ‘interests of justice’ and ‘issues related to peace and security.[48]  

One possible option to reconcile domestic jurisdiction with accountability before the ICC may be a division of labor based on temporal jurisdiction. In line with the Council referral, the ICC enjoys jurisdiction as of 15 February 2011.[49]  There is no conflict of jurisdiction with respect to crimes committed prior to that date. To frame accountability in light of this distinction may, however, pose significant challenges in practice. If proceedings go ahead first with respect to atrocity crimes before the ICC, and if defendants are sentenced, chances of a subsequent trial in Libya are remote. The ICC will have to enter into an arrangement with respect to the enforcement of a possible sentence in a ‘State designated by the Court’ which indicated its ‘willingness to accept sentenced persons’.[50] An enforcement of sentence in Libya would be unlikely, given its status as non-State Party, its detention regime and its current penalty provisions.[51] This would complicate a second domestic trial for conduct other than that adjudicated by the ICC.     

If the National Transitional Council simply goes ahead with its own process, there may two parallel processes: domestic proceedings and proceedings before the ICC. In this situation, either Libya, or the Prosecutor can seek a ruling on admissibility by the Pre-Trial Chamber.[52] If the ‘case’ before the ICC is found to be inadmissible by the Chamber in light of genuine domestic investigations or prosecutions, domestic proceedings take precedence but remain under ICC scrutiny.[53]    

If the National Transitional Council fails to cooperate with the ICC, the Prosecutor can return to the Security Council and insist on cooperation in line with SC Resolution 1970.[54] Ultimately, a Chamber might make a finding of non-compliance.[55] This would put the Council’s commitment to the referral to a severe test.

Conclusion

It is thus difficult to negate the role of international justice in the accountability efforts in Libya. Even if domestic proceedings against Saif al-Islam Gaddafi and Abduallah al-Senussi were given priority, this would not prevent continued ICC engagement. Admissibility challenges or the ‘double jeopardy’ rule[56] are confined to individual ‘cases’. The scope of ICC engagement in relation to the ‘situation’ depends on the terms of the referral, and ICC criminal policy.[57]  Even though some thought is now given inside the ICC to the proper scope, limits and closure of ‘situations’ under ICC jurisdiction[58], the Libyan mandate is currently open-ended according to the terms of Security Council Resolution 1970. The ICC is thus likely to remain on the map of Libya for a while.

Increased attention to the full spectrum of justice options (e.g., international, domestic and internationalized proceedings) may cause differences of opinion or frictions at the moment of arrest. But from a systemic and long-term perspective, this development is rather encouraging. Dialogue across jurisdictions over the most appropriate venue of justice, and continued monitoring of domestic justice by international entities forms a corollary, and an integral part of a commitment to ‘shared responsibility’ in relation to atrocity crimes. One should thus embrace, rather than condemn it, in particular in the context of the first express use of the ‘R2P’ principle in collective security action.