Libya and the ICC: Courting chaos and confusion

Any process of justice must be aimed at establishing stability and reconciliation among the affected communities.

Saif is effectively being held incommunicado, with no access to lawyers, for the past 30 months, writes Cadman [EPA]

The current jurisdictional stalemate concerning the on-going criminal proceedings against Saif al-Islam Gaddafi and his younger brother, Saadi, has once again called into question the authority of the International Criminal Court (ICC) in The Hague. The current position is certainly not that envisaged following the popular uprising in Libya, but the lack of cohesion and indecisiveness of the international community once again demonstrates that a major rethinking is required.

Justice following conflict requires a measured approach. Any process of justice and accountability must be aimed at establishing long-term stability and true reconciliation among the affected communities. It is not about revenge or retribution however powerful the desire may be.

The US Chief Prosecutor Robert H Jackson, at the first Nuremberg trial, encapsulated this in his opening address on November 20, 1945. He stated that “[…]it [is] hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war”.

He went on to state: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.”

‘Poisoned Chalice’

This statement, known as the “Poisoned Chalice” speech, has often been cited when the judicial process starts to go wrong. I have frequently referred to these poignant words in my dealing with trials of mass atrocities in Bosnia, Bangladesh and Syria. It remains as relevant today as it was in 1945.

On April 14, the trial of the two Gaddafi brothers began in Tripoli. Both men stand accused of “orchestrating a campaign of murder, torture and bombardment of civilians” during the eight-month conflict in Libya. The trials however are already marred in controversy on the basis of evidential, detention and procedural issues to name just a few. Even before the trial started, there had been significant criticisms advanced due to the total absence of due process and the treatment of the defendants.

This is Libya’s opportunity to say we have moved on from an authoritarian regime and we are committed to the rule of law. However, what we are seeing now would appear to be merely a change in personnel.

Whatever one thinks of the defendants, and indeed their father, is quite irrelevant considering the importance of these trials before a domestic court. This is Libya’s opportunity to say we have moved on from an authoritarian regime and we are committed to the rule of law. However, what we are seeing now would appear to be merely a change in personnel.

Saif will testify via video-link from Zintan, where a local militia which currently holds him, refuses to hand him over to the state. The defence have already made substantial submissions to the courts on the basis that the prosecution have not disclosed their case files and therefore preventing any meaningful preparation of a defence case.

Saif is effectively being held incommunicado, with no access to lawyers, for the past 30 months. The ICC issued arrest warrants in 2011 for Saif, and has refused to grant the Libyan application to have him tried domestically.

Therefore the Libyan authorities are obliged to surrender Saif to the court. Considering the significant instability in the country, which has seen the interim prime minister’s resignation and the kidnapping of the Jordanian ambassador to Libya, this really is the only sensible course of action. Chaos and confusion appear to reign in what now seems to be developing into an increasingly lawless state.

Leaving aside for a moment guilt or innocence, one must consider the integrity of the procedure and whether there is evidence to demonstrate that the Libyan court is competent to try these crimes and is sufficiently independent of the governing authority to try the cases according to universally recognised standards of human rights and fundamental freedoms – and finally whether it will demonstrate the requisite impartiality.

The flipside and illogical argument to transparency often advanced is that those on trial failed to respect the rights of the victims so why should we now respect their rights. It is accepted entirely that the population of Libya will want to see the trials on Libyan soil before Libyan judges. However, any process must be aimed at holding those accountable who are individually criminally responsible and if the evidence demonstrates their guilt, punished according to law. It must not be a process satisfying a lust for revenge.

Flawed justice

In considering the fairness of the current proceedings, one must be reminded that Saif al-Islam Gaddafi has been in solitary confinement and has had little or no access to a lawyer to enable any consideration of the charges against him. Thus far, he has not been brought before the Tripoli Court in any of the three pre-trial hearings and therefore has been prevented from challenging the legitimacy of his detention or the charges. Further, prosecutors state that more than 200 witnesses have been interviewed, and more than 40,000 pages of documentation obtained, along with video and audio evidence, notwithstanding the defence having had no opportunity to consider it.

The immediate argument, therefore, is that the trial process is fundamentally flawed and this is an argument that on the face of it has considerable weight. Any trial process must adhere to established principles of transparency and fairness. It is all the more important that a trial of this magnitude following the rebirth of a nation does so.

As much as it is challenging to separate oneself from a purely partisan approach given the gravity of the allegations and the damage done by the former regime, the people of Libya must adhere to the rule of law and not allow emotion to cloud their judgement and therefore undermine the entire peace process.

The only course of action at this stage is to immediately halt the trial. Thereafter, there are essentially two options. The first is that the defendants are transferred to the ICC in The Hague as previously envisaged. The second option, and one that may be more digestible to the people of Libya is that an independent judicial body is established in Libya with full international oversight.

As one who recognises that justice is better served in the very community where the crimes are alleged to have occurred, the establishment of an internationally supervised process working alongside national legal professionals, is arguably the best recipe for national accountability and lasting reconciliation. It is recognised that such a process would tend to render the ICC obsolete, but that is not the case. It must be recognised that the ICC is a court of last resort and is not the answer to each and every problem.

To allow the trial to continue in its present form will not achieve justice, it will simply be seen as a process by which revenge can be sought under the cover of a thinly veiled lid of legitimacy.

A country cannot progress and develop by way of acts of revenge.

Toby Cadman is an international criminal law specialist. He is a partner at Omnia Strategy LLP, a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.