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 [...]