Incidentally, this approach to complementarity has been controversial, and some academics have argued in favor of a “hard mirror thesis.” According to this approach, where exact crimes cannot be charged, a state should be deemed “unable” to prosecute and thus the ICC should go forward.
As we've previously discussed (see
- Saif Al-Islam Gaddafi (son of the deceased Muammar Gaddafi, and de facto Prime Minister) (below left)
- Abdullah Al-Senussi (former head of military intelligence) (below right)
This complementarity impasse may result in a number of potential outcomes under the terms of the Statute:
1. A Complementarity Challenge
Following in Kenya’s footsteps, the new government of Libya could launch a formal complementarity challenge to the admissibility of the one or both case. In the alternative, the Court could initiate an admissibility determination on its own motion. (Amnesty International, for one, has advocated the latter course of action.)
Under either scenario, Libya, to retain jurisdiction, will have to demonstrate that “concrete investigative steps”have been undertaken with respect to Saif and with regard to the same conduct covered by the arrest warrant against him. If Libya meets this burden, the ICC should deem the case inadmissible and stand down, subject to some monitoring to ensure that the proceedings are genuine.
One hitch in reaching this outcome is that Libya has no crimes against humanity legislation on its books, according to Amnesty International's recent study of national atrocity crimes legislation, although Libya does have a penal code containing relevant ordinary crimes and some war crimes.
The Court has adopted a "same person/same conduct" test for complementarity that does not necessarily require national courts to apply the same legal characterization to the underlying conduct as the Court would. So, the inability to charge Saif’s alleged crimes as crimes against humanity may not bar a finding of inadmissibility. This approach hinges on the recognition that so long as the individual is being prosecuted for the underlying conduct – no matter how it is legally characterized – the goals of complementarity are being effectuated.
In any case, a complementarity challenge by the TNC may not yet be ripe, given the state of the local domestic system. Interestingly, due process deficiencies in the national system are not technically part of the complementarity analysis, but they may nevertheless be raised by a defendant in a complementarity challenge. Generally, the problem the drafters envisioned the principle of complementarity solving is that of an under-zealous prosecutor rather than an over-zealous one. Nonetheless, there are real concerns that the self-proclaimed “guardians of the revolution” in Libya will conduct a hurried trial that results in the trial and potentially execution of the defendants in breach of their human rights. Needless to say, the death of Qaddafi père stands a worrisome precedent.
If Libya is unable to meet its burden of production, the Court would likely deem the case admissible. This would accentuate the conflict between the Libyans (who have custody of the accused) and the ICC. If the prosecutor endeavors to proceed, he would likely seek assistance from the Security Council to gain custody of the accused. If the Council refuses to intervene, it may amount to a de facto withdrawal of the referral.
This was pursued by the Prosecutor in Kenya. Because no arrest warrants had been issued vis-á-vis Kenya, and the situation was still fully under the control of the Office of the Prosecutor (OTP), the Prosecutor could control these negotiations himself. In the Libyan context, the OTP and Court both moved quickly in order to capture the deterrent effect of ICC action and also further alienate Qaddafi. An implication of such expedience is that there is now less room for bilateral negotiations. With the issuance of arrest warrants, a sort of Rubicon has been crossed that means for most any outcome, some element of the Court itself will be involved.
3. Article 94
In the alternative to a complementarity challenge, Libya may initiate a process under Article 94 of the Rome Statute to establish a sequencing of trials. In relevant part, this Article states:
If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.The Article envisions a negotiated solution when there are domestic proceedings involving different charges than those that would be the subject of an ICC prosecution. Unlike the complementarity challenge, this option may be ripe, because according to statements by the Libyan Minister of Justice, there is a case involving embezzlement charges against Saif that is “at an advanced stage.” Arguably, the ICC case, which is more focused, could go first, giving time for the TNC to get its house in order and create an evidentiary basis for a more expansive indictment against the accused. Conversely, the broader charges could go forward first domestically as part of the transitional justice moment under way in Libya.
In any case, this provision has been little studied and never used, so we have no idea how it should be activated. In addition, the mechanics of this provision are untested: It is not clear what happens if a negotiated solution proves to be elusive or even who within the Court is the point entity for these negotiations. Finally, it should be noted that this provision appears in the section dedicated to "state cooperation," which is addressed to states parties, so it is not clear if this provision is even available to Libya as a non-party state.
4. In Situ Prosecution
Under either scenario (a failed admissibility challenge or a negotiated solution in which the ICC case goes forward first), the Libyans would be required to hand Saif over to The Hague unless an in situ prosecution can be arranged as is contemplated by the Statute and Rules.
There are implications for handing the accused over to officials the Hague, including potential non-refoulement or asylum claims, especially in light of the availability of the death penalty in Libya. It is not clear if the ICC is bound by any concept of non-refoulement under customary international law, but Article 21(3) contemplates that proceedings are to be consistent with international human rights principles. Diplomatic assurances may be employed to allow the accused to remain in Libya, assuming these can be obtained and enforced.
5. The Interests of Justice
Even of the Court determines that the cases are admissible, the Prosecutor can decide not to proceed “in the interests of justice” pursuant to Article 53. Under these circumstances, the Security Council could prompt review by the Pre-Trial Chamber, or the Chamber can review this determination proprio motu. The PTC must in either case confirm the decision not to proceed. Per the Statute, the enumerated but non-exclusive factors for determining when the interests of justice may counsel against proceeding turn on the:
- Interests of the victims;
- Gravity of the crime; and
- Identity of the perpetrator.
6. Article 16 Deferral
Finally, the Council may decide to utilize its renewable Article 16 deferral power to enable prosecutions to go forward domestically, or at least to buy the Libyans more time to lay the groundwork for a more credible admissibility challenge. So far, this does not seem to be in play. Weirdly – and this is probably a statutory flaw – there is no provision for the Security Council to actually withdraw a referral.
In this discussion, there is little opportunity for the Court to assess the interests and preferences of the victims. They have the right to submit their “observations”in connection with a complementarity challenge, but no full standing to challenge admissibility. Let's hope some social scientists, such as the Human Rights Center at Berkeley, are surveying victims in Libya so their views can be heard.