Being Able to Prosecute Saif Al-islam Gaddafi: Applying Article 17(3) of the Rome Statute to Libya

• Jurisdiction: United States,Federal
• Citation: Vol. 27 No. 2
• Publication year: 2013
• topic: Criminal Law

Being Able to Prosecute Saif al-Islam Gaddafi: Applying Article 17(3) of the Rome Statute to Libya

M. Christopher Pitts

BEING ABLE TO PROSECUTE SAIF AL-ISLAM GADDAFI: APPLYING ARTICLE 17(3) OF THE ROME STATUTE TO LIBYA

Introduction

The Arab Spring was a series of revolutions and demonstrations occurring in several nations throughout the Middle East and North Africa.¹ One such revolution was the Libyan civil War, which ended the forty-year reign of Colonel Muammar Gaddafi.² While the revolution certainly affected the lives of Libyans, it also left its mark on international criminal law. On February 26, 2011, the United Nations Security Council passed Resolution 1970, which referred the situation in Libya to the International Criminal Court's Office of the Prosecutor (OTP) for an investigation into any international crimes committed by Muammar Gaddafi and his regime since February 15, 2011.³ As a result, the Pre-Trial Chamber (Chamber)⁴ of the International Criminal Court (ICC) issued warrants for the arrest of Muammar Gaddafi, Saif al-Islam Gaddafi (Gaddafi),⁵ and Abdullah al-Senussi,⁶ alleging their responsibility for committing crimes against humanity during the conflict.⁷ The charges against

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Muammar Gaddafi were dropped due to his death,⁸ but the case against Saif Gaddafi and al-Senussi has continued and become an important issue for the new Libyan government, which has challenged the admissibility of the Gaddafi case before the ICC.⁹ The Chamber denied Libya's admissibility challenge on May 31, 2013.¹⁰

What is perhaps most exceptional about this case is the admissibility exception that the parties originally talked about the least: inability. A case is inadmissible in the ICC if "[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution."¹¹ A state is considered unable to investigate or prosecute a defendant when, "due to a total or substantial collapse or unavailability of its national judicial system, the state is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings."¹² Libya, in its original challenge, addressed the issues of whether it is investigating the same crime before the ICC¹³ and whether it is willing to carry out the prosecution.¹⁴ However, Libya barely spoke to the issue of whether it is "unable to genuinely" investigate or prosecute Gaddafi outside of mere policy arguments.¹⁵ The OTP also barely touched on the issue of inability in its response to Libya's motion, dedicating only about two paragraphs of its motion to whether Libya is able to investigate and prosecute the case.¹⁶ Indeed, even the Office of Public Counsel for the Defense (OPCD) talked

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comparatively little about Libya's ability to investigate and prosecute when compared to other sections of its brief.¹⁷

That the parties spent so little time discussing the inability exception is unfortunate, because it eventually became one of the issues the Chamber talked about the most in its decision on the admissibility challenge.¹⁸ Regrettably, the Chamber decided that Libya was genuinely unable to investigate or prosecute Gaddafi in obiter dictum.¹⁹ The situation in Libya offered the ICC a unique opportunity to address the issue of inability, because the decision the Court made in this case may not only affect how it views the ability of a state to prosecute a suspect in the future, but it may also affect the ICC's policy toward the principle of complementarity²⁰ and, ultimately, the ICC's relationship with state-parties and states recovering from internal conflict for years to come.²¹ By declaring that Libya was genuinely unable to investigate or prosecute Gaddafi, the ICC missed an opportunity to implement a policy of positive complementarity to address the possible inability of a state to prosecute a defendant. Such a policy would help build a transitional government's justice system rather than deprive that country of the ability to prosecute a former regime for wrongdoing against its people.²²

This Comment argues that the Chamber wrongly decided the issue of Libya's ability to investigate and prosecute Gaddafi because it should have never reached the question. Even if it had, the Chamber's analysis under Article 17(3) of the Rome Statute was inherently flawed. Rather, out of respect for state sovereignty and the strict circumstances under which the drafters of the Rome Statute wished to place the inability exception to Articles 17(1)(a) and (b), the Chamber should have found Gaddafi's case inadmissible. Part I will address the background of the situation in Libya and the case against Gaddafi, the arguments offered by Libya in support of its admissibility challenge, and the OTP's and the OPCD's responses. Part II will discuss the Chamber's decision on Libya's admissibility challenge. Part III will discuss the

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history of Article 17(3) of the Rome Statute, explore why the inability provision was added, and analyze how Article 17 is currently construed. Part IV will discuss Jean-Pierre Bemba Gombo's case before the ICC, a case in which the issue of inability has also arisen, and compare it to the situation in Libya. Part V will discuss the case against Gaddafi in light of complementarity and the Bemba case and give reasons why the ICC should find that Gaddafi's case is, at this time, inadmissible.

I. Background

To understand the context and substance of the case against Gaddafi, as well as why Libya is at this time genuinely able to investigate and prosecute the case, it is important to know the history of the case, the arguments of the parties in their motions and at the admissibility hearing, and developments in Libya since the admissibility challenge has been submitted. This Comment will discuss each in turn.

A. History of the Case Against Gaddafi

Before the National Transitional Council of Libya (NTC or Libya) gained control of Libya, the country was ruled by Colonel Muammar Gaddafi following his coup d'état in 1969.²³ Muammar Gaddafi's control over Libya began to slip after protests arose in Libya, despite a regime crackdown, in what was called a "day of rage" on February 17, 2011.²⁴

Muammar Gaddafi, Saif Gaddafi, and al-Senussi met to "plan the repression of the protest" by mobilizing Libyan Security Forces, recruiting mercenaries, and releasing prisoners convicted of minor crimes so that they could participate in pro-Gaddafi protests and otherwise create chaos.²⁵ Saif Gaddafi in particular "took an active role in the recruitment of foreign mercenaries."²⁶ The protests quickly escalated into conflicts between the

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demonstrators and Muammar Gaddafi's regime.²⁷ The killing of protesters was allegedly expressly authorized by Muammar Gaddafi and coordinated by al-Senussi as a means of suppressing the protests.²⁸ Not surprisingly, larger demonstrations against Muammar Gaddafi's regime resulted from the killings of these protesters, bringing about "a systematic and even more violent response" from the Security Forces.²⁹ On February 20, 2011, Saif Gaddafi threatened a civil war that would be "worse than Iraq and worse than in Yugoslavia that would cause thousands of deaths" if the protests did not stop.³⁰

Once the protests escalated into civil war, the NTC was created in Benghazi on February 27, 2011 to serve as the "political face . . . for the revolution" against Muammar Gaddafi and his regime.³¹ During a speech renouncing the Gaddafi regime, Libya's deputy ambassador to the United Nations, Ibrahim Dabbashi, issued perhaps the first call from the Libyan Mission to the United Nations to have the ICC investigate Muammar Gaddafi for war crimes and crimes against humanity.³² On February 26, 2011, the Security Council unanimously passed Resolution 1970 which, among other things, referred the situation in Libya to the OTP for an investigation of any international crimes since February 15, 2011.³³

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In a decision rendered on June 27, 2011, the Chamber issued warrants for the arrest of Muammar Gaddafi, Saif Gaddafi and al-Senussi for their alleged responsibility in committing murder as a crime against humanity under Article 7(1)(a) of the Rome Statute and persecution as a crime against humanity under Article 7(1)(h).³⁴ Saif Gaddafi was indicted as an indirect co-perpetrator of these crimes, and al-Senussi was indicted as an indirect perpetrator.³⁵ However, gaining custody over the Gaddafis and al-Senussi has proven difficult for the ICC.³⁶ Muammar Gaddafi died from wounds sustained during the Battle of Sirte.³⁷ Because of his death, the Chamber formally dropped the charges against Muammar Gaddafi.³⁸

On November 19, 2011, militia forces in Zintan, Libya captured Saif Gaddafi.³⁹ Immediately after his arrest, Libya resisted turning him over to the ICC and began to investigate him for financial and corruption crimes.⁴⁰ The Libyan Prosecutor-General did not begin investigating Gaddafi for serious crimes such as murder and rape until January 2012.⁴¹ The Zintan militia has held Gaddafi in Zintan since his capture.⁴²

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Al-Senussi was not captured until March 17, 2012, at the Nouakchott airport in Mauritania.⁴³ Eventually al-Senussi was extradited to Libya on September 5, 2012,⁴⁴ and there were reports that Libya paid as much as $200 million to Mauritania to secure his transfer.⁴⁵ The NTC began investigating al-Senussi for his participation in the atrocities during the Libyan Civil War almost immediately after his capture.⁴⁶

On January 23, 2012, the NTC began to fight Gaddafi's surrender, requesting a postponement of the surrender request under Article 94(1) of the Rome Statute so that Libya could finish investigating and prosecuting Gaddafi for various national crimes.⁴⁷ On March 7, 2012, the Chamber denied the postponement request and stated that "Libya must grant the surrender request."⁴⁸...