01/12/2012 03:11 pm ET Updated Mar 13, 2012

The Libya Trial -- Victor's Justice at the ICC?

Please, please, don't make us look stupid!

Is the International Criminal Court (ICC) begging the Libyan government? It seems to be, in its most recent request for information regarding the trial of Saif al-Islam Gaddafi, who was indicted for crimes against humanity by the Pre-Trial Chamber I on June 27, 2011. It's a plea to not make the Court look stupid.

It had been confirmed by November 22nd that the Gaddafi trial would take place in Libya with only minimal ICC supervision (despite ICC press releases to the contrary) instead of the ICC courtrooms in the Hague. ICC Prosecutor Luis Moreno-Ocampo stated "I am not competing for the case," and that it wasn't for him to tell the Libyans how to conduct the trial because "there are so many different traditions, it is difficult to say what is fair." He also mentioned that trying Gaddafi on Libyan soil was "very important" to the Libyans, by whom he presumably meant the non-elected National Transitional Council (NTC), whom he also claimed had "primacy" over the case.

Evading Consent

Underpinning the ICC system is that the Court is a treaty body, to which one must actively accede by ratifying the Rome Statute. In addition, the ICC is meant to be a "court of last resort" that will only investigate the gravest of cases and only if a state party is unwilling or unable to do so.

However, the most recent four of seven country investigations at the ICC arguably lack the consent of the state parties. The Libya and Sudan situations were referred by the UN Security Council, an option laid out in Article 13(b) of the Rome Statute. They were never state parties to the Statute.

The Ivory Coast, also not a state party to the ICC, was self-referred by the newly-minted President Alassane Ouattara, who wrote a letter to the ICC dated December 14, 2010, less than a month after he won highly-disputed elections, 6 months before a May 2011 high court decision confirmed his presidency, and nearly 7 months before he actually took the reigns of the country at the end of a destructive civil war. This letter came a time when President Ouattara had no control over the country and would only obtain control after France, the former colonial power, cornered Ouattara's adversary, Laurent Gbagbo (currently on trial at the ICC). While Article 12(3) of the ICC treaty, the Rome Statute, allows a non-party "state" to give the ICC jurisdiction over a particular situation, it is unclear if Ouattara actually represented the "state" in December, 2010.

Finally, we have the Kenya situation. The principle of "complementarity" theoretically makes the ICC a court of last resort. Article 17(1) allows several routes for an admissibility challenge to the Court's jurisdiction, and Kenya made the argument that it was already investigating the "case" on a good faith basis and it was thus immune from ICC jurisdiction.

The Court responded using a combination of its double jeopardy provision and language from a different Article 17(1) route of inadmissibility to conclude, in paragraph 41, that a case will only be inadmissible if the same people are being investigated for substantially the same conduct.

This "same suspects/same conduct" test sets an impossibly high bar for complementarity that significantly diminishes the state party's power to investigate crimes committed on their own soil, and been persistently objected to by the current Kenya government. Such persistent objection to the ICC Appeal's Chamber's interpretation of the Rome Statute surely seems to at least impinge upon the consent of Kenya to be subject to ICC jurisdiction in this case. Fear of this interpretation of the Statute is in fact the USA's main hang-up preventing it from joining the ICC.

Meanwhile, Back in Tripoli...

Ocampo's gamble on the Libyan court system might not pay off. The morning of Tuesday, January 10th, it seemed that the NTC had cut and run with its newest detainee. Later in the day we found out that the ICC decided to extend the deadline for an update on Gaddafi's trial by the Libyan government. Now, even human rights groups are ironically worrying about his due process rights.

In Libya, the non-elected government has already compiled a hefty record of human rights abuses, including the cold-blooded execution (and possible war crime) of its former head of state. Why the heck, you should be asking, did Ocampo choose to give Libya control over their national suspects, while resisting the Kenyan government's many requests to try their own citizens under its relatively developed rule of law?

Why, you should also be asking, did Ocampo claim that a fair trial is not his business, but is in fact an ambiguous idea that differs form culture to culture? The entire reason for the ICC's existence is to repudiate that claim. There are certain crimes -- be they war crimes or crimes against humanity -- that are illegal, no matter what your position in society or in which nation you reside.

A Court Contradicting Itself

Contrary to the Prosecutor's claim, the ICC does recognize the duty to uphold due process for trials handed over to domestic authorities. In Article 17(2) of the Rome Statute, local proceedings must take place with "regard to the principles of due process recognized by international law" and be disqualified if "the proceedings were not or are not being conducted independently or impartially."

For Kenya, the ICC chose to erect the impossibly high "same suspects/same conduct" barrier to domestic jurisdiction. In Libya, Gaddafi was given over to the Libyan rebels with barely a peep. Despite the ambiguous legality of this decision, the policy underlying it could be even worse.

It is always easier to target the weak. In the ICC's case, it was meant to and has indicted current heads of state. But indicting the much-reviled Omar al-Bashir, or deposed leader Laurent Gbagbo, is much more politically palatable than, say, indicting President Ouattara (or his UN-backed forces) for his own alleged crimes. The point of the ICC is to transcend politics and eliminate impunity for the gravest crimes, especially those committed by people in power. Let's just hope that the Libya situation is not another case of victor's justice -- the very thing that the ICC was created to prevent.