Libya/ICC: “Saif Al Islam custody decision: ICC should do better”

Interview with Alison Smith, Legal Counsel and Director of the International Criminal Justice Program for No Peace Without Justice, Brussels, 6 August 2013

On 18 July 2013, the Appeals Chamber of the International Criminal Court (ICC) ruled that Saif al-Islam Gaddafi should be transferred to The Hague pending a decision on the admissibility of his case. Libya claimed primary jurisdiction over the Libyan leader based on the ICC founding principle of complementarity, according to which the ICC does not have jurisdiction when a State is able and willing to investigate and prosecute the same crimes. On 31 May 2013, the ICC Pre-Trial Chamber had rejected Libya’s challenge and ordered the transfer of Saif al-Islam Gaddafi to The Hague. Libya appealed the decision on 7 June 2013 and sought temporary suspension of the order of transfer, pending determination of the appeal. The ICC Appeals Chamber has yet to set a date for its decision on the merits of Libya’s complementarity challenge, but its ruling issued last week confirmed the order to transfer Saif al-Islam Gaddafi to The Hague pending that determination.
What is the impact of the ruling issued by the Appeals Chamber? How this decision will be perceived in the country?
Alison Smith: “This unprecedented decision will not be easy to explain to the people of Libya. First of all, we should recall the wishes of the victims and of the people of Libya, that both Saif al-Islam and Abdulla al-Senussi be tried in the country, to face justice in the same place in which they allegedly waged their brutal attacks. Second, there are several misconceptions in Libya about the ICC and its work, due to the fact that the ICC did very little to communicate or demonstrate its work locally or to establish any kind of local presence. This ruling might increase those misperceptions and risks, which could damage the ICC’s credibility and future contributions to this country. In addition to that, the Appeal Chambers is still considering whether the complementarity challenge by Libya should preclude ICC jurisdiction and allow the national jurisdiction to take precedence, as foreseen in the Rome ICC Statute”.
Does it mean that If Libya wins that challenge, the ICC would have to send Mr Gaddafi back to Libya?
Alison Smith:“Exactly. We can easily imagine the difficulties that this situation would imply, without mentioning the waste of time and money, neither of which the Court has in abundance. One could reasonably question if the prospect of ping‑ponging a defendant around the world is really the best choice for a Court whose founding principle is that States should investigate and prosecute alleged war criminals themselves. Is this really how the ICC’s States Parties want the ICC’s resources to be spent? Surely the time, money and political will that would go into wrestling Mr Gaddafi from Libyan soil would be better spent on other ICC cases or assisting Libya carry out the trial themselves”.
This sounds similar to Libya’s argument that requiring them to transfer Mr Gaddafi to The Hague would create an irreversible situation or one that would be difficult to correct if they were to win their appeal. However, the Appeals Chamber said it was not convinced by that argument – what’s your take on that?
Alison Smith: “They did say that, but the reasons the Appeals Chamber themselves give for being unconvinced are rather brief and peremptory. One could ask if the Appeals Chamber has really considered the legal and political constraints on the ICC’s host country, The Netherlands, when the time comes to offer assistance to the ICC in repatriating Saif al-Islam Gaddafi back to Libya to face national proceedings under Libyan law. Have they actually taken into consideration that the impact of Mr Gaddafi’s surrender would prejudice not only the Libyan judicial case against Mr Gaddafi, one of their prime suspects, but also other cases that form the backbone of Libya’s transitional justice strategy? One the face of it, this argument does seem to have some merit and deserved more detailed reasoning as to why it doesn’t hold water with the Appeals Chamber.”

Do you think that this ruling might curtail the trust that local population and victims place in the capacity of Libyan authorities to hold fair and effective proceedings?

Alison Smith: “This is certainly an aspect that deserves some consideration and part of the reason why the Libyan argument seems to have some merit. If Libyan victims and witnesses are told by the ICC that Libya is unable to do the job, it is logical to conclude that they would be less willing to cooperate with national prosecution authorities. Without testimony from victims and witnesses, and without the support of the public, how can the Libyan authorities make any progress in their investigations and in building their cases?"

Does it mean that the ICC is underestimating the efforts and commitment of the Libyan State to investigate and prosecute the crimes committed before and during the conflict?

Alison Smith: “The fact is that we are not dealing with a State that is simply pretending to investigate and prosecute. We are dealing with a State that is actually willing to do so – more than that, a State that is positively eager to take care of crimes committed on its territory by its citizens itself. Yes, the ICC arrest warrants against senior Gaddafi officials were welcomed by the people of Libya. But a trial outside Libya is never something that the people wanted; they wanted – and they still want – Mr Gaddafi and his ilk to face victims on their territory, to answer the charges that have been brought against them for the terrible crimes that were committed against the people of Libya”.

Do you consider that the Appeals Chamber has overlooked the potential consequences of its ruling on the ground?

Alison Smith: “Clearly, rather than a mere academic exercise, this ruling should be considered as a test of the principle of complementarity that has real consequences for a country still struggling to overcome its past. Considering that the ICC does not need Saif al-Islam Gaddafi for trial at least until the jurisdictional challenge is resolved, the Appeals Chamber should have kept the legal status quo until determining the appeal on its merits. When the ICC demands State cooperation, it needs to do so based on clear, sound and well-explained decisions, otherwise the only result will be to multiply instances of non-cooperation. If the ICC wants its prestige, authority and credibility to be retained and restored, it needs to do better than this.”
For further information, contact Alison Smith on or +32-2-548-3912 or Nicola Giovannini on or +32-2-548-3915.