The ICC Rules Libyan Case Inadmissible

The International Criminal Court today for the first time ruled a case inadmissible, and left the matter to domestic justice. Doubtless the anti-activist ruling has nothing to do with the confab of African countries today, called together by Kenya to discuss quitting the Court’s jurisdiction en masse in protest of the Court doing its job and hearing cases involving African countries that had had accepted its jurisdiction. Such a move, which I don’t think will happen, would be devastating for the court.

The case involved charges against Al-Senussi, Qaddafi’s former head of military intelligence and doubtless very terrible guy. He has been in Libyan custody for over 18 months, with an investigation slowly proceeding, but no clear end in sight. The ICC charged Senussi after the Security Council referred the Libyan situation to them during the civil war that lead to Qaddafi’s downfall. It is particularly notable that the Court dismissed the case here when it arose from a S.C. referral, which are rare and generally correspond to an extra level of seriousness.

The Pre-Trial Chamber (PTC) of the Court found the case satisfied the complementary principle – that is, the ICC can only act when the home state is “unable or unwilling” to prosecute. This principle is essential for international criminal justice, but has gotten little elaboration by the Court in its 11 years of existence.

Libya is certainly “willing” – there is no concern here of a sham prosecution to shield the former regime baddie from justice. It might not be “willing” to overcome the various turf, bureaucratic and inertia problems that it might face in staging a trial but that is not what willingness means, the PTC suggests. The bigger question is “able.”

This is a country whose Prime Minister just got taken for a joy ride by armed thugs yesterday – it is not clear they are “able” to do anything. On the other hand, Libya is not alone among the countries of the world in barely being able to keep the shop open, and the “able” language does not give the ICC general authority over all crimes within its jurisdiction in failing and weak states.

The PTC took a robust approach to complementarity, unlike in prior cases. Libya cannot be considered “unwilling” simply because nearly two years have gone by with almost no movement in the case. Delay itself does not prove unwillingness absent evidence that the point is to provide impunity. After all, the ICC itself is not exactly expeditious in its handling of cases, as the Prosecutor herself noted.

Similarly, a finding of “unable” can only be made when there is a collapse of the state’s systems, rather than a significant disfunction. Libya is divided amongst armed militias, government offices are bombed, oil production is in shambles – but not the requisite collapse.

The Court’s anti-activist approach, if it represents a new tone rather than a blip, has implications for some of the bigger questions about complementarity. What if a state investigates and does not prosecute not because of an intent to “shield” anyone “from justice,” but because of a different notion of Justice.

For example, a state investigates the destruction of a village by its armed forces in an attack on suspected terrorists and concludes it is proportionate, while most human rights groups disagree. Or a referral over U.S. drone strikes in a third country, which the U.S. investigates but fails to bring charges because it does not regard such strikes as illegal, contrary to much or most international legal opinion. Does the ICC give deference to such determinations, even when it would have concluded differently? THat is unclear from the statute. The opinion here seems would be consistent with finding such cases inadmissible.

The answers to these questions are not clear from the present case: the hard questions of “unable” involve cases against existing regime officials, not those of a hated deposed government. Moreover, the decision in some tension with an earlier rejection of Libya’s admissibility challenge to Qadaffi. There are some differences – here the suspect is in custody and there has been a bit more investigation, but the overall factors concerning Libya’s ability seem little changed, and if anything, changed for the worse as the central government continues to flounder.

Perhaps one reason the tribunal took such a generous view of Libya’s ability to handle the matter, including access to and protection of witnesses, is its own recent failings in the witness-evidence department. One wouldn’t want to suggest that the ICC is a failed state.

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