Prosecuting Gaddafi: Ensuring Justice in Libya

JURIST Guest Columnist Charles Adeogun-Phillips of Charles Anthony LLP says that despite concerns surrounding the ability of the new Libyan government to provide Muammar Gaddafi with a fair trial upon capture, it should be allowed the opportunity to establish a hybrid international and domestic court for the purposes of institution building and reconciliation...

From all indications, it would seem as though the 42-year reign of Libyan leader and Pan African activist Colonel Muammar Gaddafi is finally over. Like Saddam Hussein, his ego is bound to get the better of him, and he will mostly likely remain on Libyan soil until he is captured by rebel forces. That is not necessarily a bad thing.

At a minimum, it is clear that the preferred choice of the National Transitional Council (NTC) is that Gaddafi be tried at home on account of the fact that he presided over the brutal slaughter of Libyan civilians during the recent uprising. It may well be that, in an attempt to reflect the totality of Gaddafi's alleged criminal conduct, the NTC may decide that he face trial on international terrorism charges in connection with the bombing of Pan Am flight 103 over Lockerbie, Scotland 23 years ago. Many international commentators have objected to this view on the premise that it is inconceivable that Gaddafi could receive justice at the hands of those whom he has repressed for so long. Consequently, they have argued that his fate should be left to the International Criminal Court (ICC) at The Hague.

Notable among those clamoring for a trial in the ICC is a leading international human rights lawyer and former president of the UN-backed Special Court for Sierra Leone, Geoffrey Robertson. In recent articles in The Sydney Morning Herald and the Guardian, he argues that as a matter of principle, the fate of the Gaddafis must not be left to Libyans. In that regard, Robertson identifies the massacre of 1,200 captives in a prison compound, the killing of 270 people in the Lockerbie bombing and almost as many in a passenger jet over Chad a few months later, as "the most egregious examples of Gaddafi's international crimes." He argues that it is essential for "Gaddafi [to] face justice in The Hague, not in Benghazi."

I am a little surprised and perhaps even more confused by Robertson's arguments in this regard, considering that the ICC does not have retrospective jurisdiction and is therefore unable to try Gaddafi for these particular crimes. All crimes within the jurisdiction of that court must have occurred after the entry into force of the Rome Statute on July 1, 2002. This is one key feature of proceedings before the ICC. That being the case, even with its best efforts, the ICC will be unable to try Gaddafi for these events.

Apart from lacking the temporal jurisdiction to try Gaddafi for these crimes, the ICC also lacks subject matter jurisdiction, at least so far as the Lockerbie and Chad bombings are concerned. These were acts of terrorism committed without any connection to an armed conflict and as such are outside the jurisdiction of the Rome Statute, even though they constitute international crimes. I fail to understand the logic in Robertson's suggestion that a court, which obviously lacks jurisdiction, provides Libyans with an appropriate forum to try Gaddafi for these crimes. Astonishingly, and still in favor of The Hague, Robertson argues that the fact that "liberation has come to the Libyans courtesy of international law, they have a reciprocal duty to abide by it." As evidence of this, Robertson cites the UN Security Council Resolution 1970 [PDF] of February 2011, which referred the situation in Libya to the ICC, and which has led to charges being filed by the ICC prosecutor against Muammar Gaddafi, his son, Saif al-Islam and Abdullah al-Senussi by the said court.

However, a close examination of UN Security Council Resolution 1970 will reveal that it has nothing whatsoever to do with either the Lockerbie or Chad bombings. In fact, ICC prosecutor Luis Moreno-Ocampo has not indicted the Gaddafis for any of these crimes because he is quite simply barred by statute, thus raising one of the most unique and fascinating aspects of international criminal law. In that regard, although there is no statute of limitation for the prosecution of international crimes, several of the international penal institutions where such crimes can be prosecuted are often of limited temporal and subject matter jurisdiction. Such is the case here.

So, if the ICC prosecutor is statute barred from prosecuting Gaddafi at least in connection with the Lockerbie bombing, he is in effect devoid of the ability to reflect the totality of Gaddafi's alleged criminal conduct in court, especially as this particular crime was "international" in all its ramifications. That cannot be the right approach to seeking justice for both Libyans and the international community at large.

Robertson further cites UN Security Council Resolution 1973 mandating NATO's action in Libya to protect civilian lives, and concludes that no one can pretend that Gaddafi's regime could have been overthrown without the air, sea and logistical support provided by NATO forces. To be fair, he is not the only one that shares this view. It is the collective opinion of many in the "West." However, he likens it to a "duty" under international law, and that is what I have a problem with.

Having totally confused the temporal and subject matter jurisdiction of the ICC in relation to the events outlined above, I trust this renowned British human rights lawyer is not now suggesting that the Libyan people owe the super powers in control of NATO, immense gratitude for their "intervention" in saving the people of Libya and that the time has come for some sort of "payback," after all, as the saying goes, nothing goes for nothing. In all my years of practice as a distinguished member of the international bar, I have never come across such a notion under public international law — namely, one which imposes on a sovereign state, a "reciprocal duty to abide by international law." Does Robertson suggest yet another extension to the draft Article on the Doctrine of State Responsibility as proposed by the International Law Commission?

One might be forgiven to assume that as a member of the UN, Libya and its people are entitled to some measure of protection from the international community against obvious and sustained human rights abuses without the need to reciprocate. After all, does the UN Security Council not have a conventional obligation to maintain peace and security in all countries of the world? Anyone who reads the text of Resolution 1970 would find that it does. Assuming that such a duty exists, in fact and in law, the question then arises: does the forum for the exercise of that duty have to occur outside of Libya? I would think not.

In any event, contrary to Robertson's view, assuming by a long-shot that both the subject matter and temporal jurisdictional issues are in place in relation to the crimes outlined in his paper, Resolution 1970, cannot in itself, confer jurisdiction on the ICC regarding the situation in Libya. This is yet another misapprehension that Robertson labors under. Another major feature of the Rome Statute is that the judicial activity of the ICC is intended only to compliment that of national courts. Consequently, the ICC can exercise its jurisdiction only when national courts are unwilling or unable to genuinely carry out investigations and the prosecution of persons accused of international crimes defined in the Rome Statute — namely genocide, crimes against humanity, war crimes and the crime of aggression.

Therefore, although the UN Security Council, acting under Chapter VII of the UN Charter, can require the ICC prosecutor to commence an investigation and report back to it accordingly, such investigative activity merely compliments that of the state in question and cannot have precedence over it. It is only when a state is found to be unable or unwilling to prosecute these crimes that the jurisdiction of the ICC is triggered. The question is this: has the National Transitional Council (NTC), described by Robertson as "a gimcrack organization," been afforded the opportunity to determine whether or not it has the ability to prosecute the Gaddafis for these crimes? Should they in fact be afforded such an opportunity? Certainly, Robertson, who sees the NTC as nothing but "showy and useless," (the oxford dictionary definition of the word gimcrack) cannot think so.

Surely, the NTC's stated preference for prosecuting Muammar Gaddafi and his son, Saif al-Islam, among others, on Libyan soil must speak for the majority of Libyans. In any event, even if they wanted to, the NTC cannot refer the terrorist acts alluded to by Robertson to the ICC, but can only do so in relation to the crimes committed against the Libyan people during the recent uprising in February 2011.

The NTC's position has received the support of UK Prime Minister David Cameron and other notable international figures. In reaction, Robertson describes Cameron's position as a "serious mistake" and likens it with that which "George Bush took after the capture of Saddam Hussein, which as far as he is concerned, was a rhetorical cover to ensure that the death penalty could be imposed on Hussein by politically manipulated local judges." The suggestion that it is impossible to receive a "fair" trial when charged with serious international crimes unless one is spirited off to The Hague must be incorrect. Certainly, a trial at the ICC for international crimes cannot be the only option open to the NTC, even if one were to be persuaded by Robertson's apparent disregard for the African and Middle Eastern judiciary, where, according to him, local judges can be politically manipulated. Even if it were so, is this the kind of statement one would expect from a distinguished jurist who once presided over the affairs of a UN-backed court situated on the African continent?

Leaving Robertson's short-sighted and myopic views aside for a moment, if anything, it has to be important to the international community that justice not only be done in Libya, but that it is done to the satisfaction of Libyans. This cannot be fully achieved at The Hague. Instead, the people of Libya need a forum that can allow them the flexibility of presenting the totality of Gaddafi's alleged criminal conduct during his 42-year reign of terror on his people and the international community at large. The ICC cannot afford them that opportunity.

Even in relation to the crimes for which the ICC has jurisdiction, the Libyan people, through the NTC, have not been afforded the opportunity to demonstrate their inability and/or unwillingness to prosecute the Gaddafis. On the contrary, they have said that they are able and willing to do so and that, in the absence of evidence to the contrary, puts to rest any discussions of an ICC prosecution, at least for now. Rather than lean towards an ICC prosecution for Gaddafi and his co-perpetrators, it is important at this crucial stage that the NTC receives unbiased counsel as to the various options available to seek and achieve justice for the heinous crimes committed by Gaddafi and his loyalists during the uprising with a view to securing lasting reconciliation amongst the Libyan population.

In that regard, there are several proven scenarios and models of international justice that can be utilized by the NTC to prosecute a range of international crimes committed within and outside Libya and ensure the fairness of the trial process. It is only after these avenues have been considered and exhausted that the issue of trials at The Hague can be entertained. Such proven scenarios consist of the establishment of a hybrid court, which can either be in the form of a domesticated international court, or an internationalized domestic court. With either model, the jurisdiction of such hybrid courts will be not be limited in time as they can try cases dating back several years, as there is no statute of limitation for international crimes. Such courts will ideally be composed of both local and international prosecutors and judges, such as was the case in the Special Panels of the Dili District Court in East Timor in 2000; the panels in the courts of Kosovo in 2001; the Special Court for Sierra Leone (SCSL) in 2002; the Extraordinary Chambers in the Courts of Cambodia (ECCC) in 2006; and the Special Tribunal for Lebanon (STL) in 2009.

Flexibility and customizability are perhaps the greatest assets of hybrid criminal tribunals and special courts as there is virtually no situation that a hybrid tribunal or court cannot accommodate. It is this customized legal and judicial flexibility that the Libyan people require at this time and there is no reason why they cannot have it. Apart from the fact that these types of special courts are ad hoc in nature, they can operate utilizing a distinctive blend of both domestic and international substantive and procedural laws and rules derived from common and civil law jurisdictions. For example, in the case of the STL, the procedural rules are international in nature, but its applicable substantive law is derived from the Lebanese Criminal Code. In contrast, the procedure at the ECCC is based on Cambodian criminal procedure and its substantive law is, for the most part, international in character. Any one of these options is open to the NTC and the Libyan people in consultation with international experts.

It has also been possible for states who still operate the death penalty to remove or suspend those provisions in relation to the prosecution of international crimes. This was done in Rwanda to allow for the transfer of cases from the International Criminal Tribunal for Rwanda (ICTR) as part of the completion strategy, which required the transfer of cases from the UN court to Rwanda, among others. Therefore, there is no justification in the argument that the existence of the death penalty in Libya would impact on the ability of defendants to be guaranteed a fair hearing.

Those of us who were fortunate enough to have been involved in the pioneering work of the first two ad hoc international tribunals established since the Nuremberg trials have, with the benefit of hindsight, discovered that the hybrid as opposed to solely international courts can be more efficient and better situated for prosecuting international crimes following large scale atrocities. We have also found that the inquisitorial rather than adversarial approach may be better suited to prosecute such offences. Robertson has not taken these factors into consideration.

In that regard, it is the full participation of nationals from the affected countries that clearly sets the hybrid criminal tribunals apart from all other international criminal forums. Concerns as to the fairness of the judiciary are often balanced with the appointment of at least one local judge to a bench of three judges. Likewise, prosecutors, investigators and registrars at such courts are often drawn from both local and international personnel, thus providing locals with a stake in the process and at the same time building human capacity in the relevant state.

In terms of subject matter jurisdiction, it is only a hybrid international court that can conduct a trial for events such as the Lockerbie bombing. In addition, a hybrid court can utilize existing legal and investigative talent within Libya to achieve the efficient investigation and prosecution of the Gaddafis for their crimes. After all, they know their territory better than any foreigner does. A customized hybrid court will be cheaper, more focused, efficient and would create a much needed local capacity. The activities of such a court will be documented and archived locally for successive generations. This court could not only prosecute international crimes in Libya, but also bolster the existing national judicial system and the rule of law.

In contrast, solely international courts tend to be staffed along the lines of the UN General Assembly. More often than not, the focus during the recruitment of personnel is on adequate representation of UN member states, as opposed to efficiency. Libyan citizens will play a peripheral role, if any, in the prosecution and investigation of these crimes such as acting as language assistants with little or virtually no visibility, whilst foreign lawyers, investigators, experts and other professionals will play more prominent roles. In any event, because international courts do not have any enforcement powers of their own, the reality on the ground is that international lawyers, investigators and other professionals drawn for all over the world still have to rely heavily on local law enforcement professionals for gaining access to crime scenes, retrieving and collecting evidence and even protecting witnesses. To that end, practical considerations, such as witness protection issues, the availability of witnesses, gaining access to territory, and safe passage of witnesses can only be guaranteed by the state in whose territory the crimes occurred.

Indeed, one of the major shortcomings of the solely international prosecution is the fact that such institutions are situated outside the country in which the atrocities were committed. It is difficult, if not impossible, for anyone experienced in dealing with the victims, witnesses and survivors of large scale atrocities to argue that international forums are better suited to aid national reconciliation than domestic or hybrid ones. In that regard, the ability of victims of large-scale atrocities to follow the trials of the perpetrators of such crimes makes a marked difference in their ability to heal and reconcile. After all, can we legitimately implore victims and survivors of mass crimes to be patient and exercise restraint if we are unable or unwilling to deliver justice to assuage their wounds in a manner that they can relate to?

Placing a hybrid court in the middle of the crime scene was without a doubt a great motivation for the SCSL. The SCSL was the first of the hybrid international tribunals to be situated right within the crime scene, as it were. That allowed the people of Sierra Leone to see justice being done. Robertson presided over the affairs of that court from its inception. Like their counterparts in Cambodia, Sierra Leone and Egypt, Libyans need to share in this experience. International tribunals and courts are created for the victims and not for the desires of the international community. A hybrid international court will leave a lasting legacy for the Libyan people, who will be trained to take over from their international counterparts. It will allow people to know that the rule of law is indeed a more powerful and better option than the rule of the gun.

Having said that, lessons must be learned from past. From the onset, the Libyans must seek expert help in establishing an achievable mandate for the operation of this court. That mandate must be limited and focused on prosecuting only those who bear the greatest responsibility for the crimes charged. The Libyans must be assisted in exercising that prosecutorial discretion, which, if abused, may have far-reaching consequences for the entire region. There must be a prosecutorial plan and that plan must be realistic and achievable. Such a plan must include a comprehensive trial strategy, which must involve prosecutors and investigators working in tandem. Investigations must be conducted into possible sexual offences against women and children where relevant, and concrete mechanisms must be established to seek, protect and relocate witnesses. There should be no more than a handful of indictments issued, perhaps no more than a dozen. An exit strategy must be established right at the beginning, as the work of any international tribunal or court must be limited in time, and efforts must be made to keep to that time frame. Funding commitments should be secured well in advance of the court's creation.

Of course, solely international courts and tribunals have the unique advantage of being located away from the country where the crimes occurred. That sometimes can be an invaluable tool depending on the nature of the conflict and the actors involved. There have been several situations where for political reasons and ongoing conflicts, it has been practically impossible to prosecute international crimes in the country were the crimes occurred. Rwanda and the former Yugoslavia are recent examples.

The recent ICC investigation of the situation in Kenya following the post-election violence of December 2007 is yet another example of such a situation. Similarly, the relocation of the Charles Taylor trial from Freetown to The Hague was necessary for security reasons, provides another example of the flexibility of hybrid courts. The STL, established to prosecute those responsible for the assassination of former Lebanese Prime Minister Rafik Hariri, also hybrid in nature, sits in Leidschendam, just outside The Hague. The ongoing political divisions in Beirut and neighboring Damascus made it impossible to establish that court within Lebanon.

It may well be that the trial of the Gaddafis may follow this pattern if and when such a situation presents itself. It is, however, premature at this stage to dismiss the possibility of conducting their trials in Benghazi. Whichever system of justice is employed by the NTC, it must be emphasized that no system of international criminal justice can succeed without the fullest international support and cooperation.

With neighboring Egypt and Tunisia embroiled in their own post-conflict matters; Algeria playing host to and providing protective refuge to Gaddafi's immediate and extended family; South Africa undecided as to its position on the NTC and in the absence of consensus within the African Union (AU) (Nigeria, having publicly declared support for the NTC), the AU must seize the moment and take more decisive, robust and bold steps towards playing a more significant role in post-conflict Libya. Insisting on Libyans try the Gaddafis on Libyan soil will be a step in that direction. It is a step that will serve to ensure the creation of enduring judicial institutions, and promote and enhance fair trial values on the continent of Africa.

The best-case scenario must be for African tyrants to face trial before their people. It is only then that we can truly talk of reconciliation through justice. Justice must not only be done in Libya, but must be seen by all Libyans to be done.

Charles Adeogun-Phillips is the founding partner of Charles Anthony LLP. He is a former international prosecutor and senior UN lawyer, who for over a decade led the prosecution of persons responsible for the Rwandan genocide. He is currently admitted to practice as lead counsel before several international courts and tribunals including the Special Tribunal for Lebanon and the African Court for People's and Human Rights.

Suggested citation:Charles Adeogun-Phillips, Prosecuting Gaddafi: Ensuring Justice in Libya, JURIST - Forum, September 20, 2011, http://jurist.org/forum/2011/09/charles-adeogun-phillips-libya.php.




This article was prepared for publication by John Grant, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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