Prosecuting Gaddafi: ensuring justice in Libya

[This is the title of an article published two days ago on the University of Pittsburgh Law School's Jurist website by Charles Adeogun-Phillips a former international prosecutor and senior UN lawyer, who for over a decade led the prosecution of persons responsible for the Rwandan genocide. It reads in part:]

From all indications, it would seem as though the 42-year reign of Libyan leader and Pan African activist Colonel Muammar Gaddafi is finally over. Like Saddam Hussein, his ego is bound to get the better of him, and he will mostly likely remain on Libyan soil until he is captured by rebel forces. That is not necessarily a bad thing. 

At a minimum, it is clear that the preferred choice of the National Transitional Council (NTC) is that Gaddafi be tried at home on account of the fact that he presided over the brutal slaughter of Libyan civilians during the recent uprising. It may well be that, in an attempt to reflect the totality of Gaddafi's alleged criminal conduct, the NTC may decide that he face trial on international terrorism charges in connection with the bombing of Pan Am flight 103 over Lockerbie, Scotland 23 years ago. Many international commentators have objected to this view on the premise that it is inconceivable that Gaddafi could receive justice at the hands of those whom he has repressed for so long. Consequently, they have argued that his fate should be left to the International Criminal Court (ICC) at The Hague. 

Notable among those clamoring for a trial in the ICC is a leading international human rights lawyer and former president of the UN-backed Special Court for Sierra Leone, Geoffrey Robertson. In recent articles in The Sydney Morning Herald and the Guardian, he argues that as a matter of principle, the fate of the Gaddafis must not be left to Libyans. In that regard, Robertson identifies the massacre of 1,200 captives in a prison compound, the killing of 270 people in the Lockerbie bombing and almost as many in a passenger jet over Chad a few months later, as "the most egregious examples of Gaddafi's international crimes." He argues that it is essential for "Gaddafi [to] face justice in The Hague, not in Benghazi."

I am a little surprised and perhaps even more confused by Robertson's arguments in this regard, considering that the ICC does not have retrospective jurisdiction and is therefore unable to try Gaddafi for these particular crimes. All crimes within the jurisdiction of that court must have occurred after the entry into force of the Rome Statute on July 1, 2002. This is one key feature of proceedings before the ICC. That being the case, even with its best efforts, the ICC will be unable to try Gaddafi for these events.

Apart from lacking the temporal jurisdiction to try Gaddafi for these crimes, the ICC also lacks subject matter jurisdiction, at least so far as the Lockerbie and Chad bombings are concerned. These were acts of terrorism committed without any connection to an armed conflict and as such are outside the jurisdiction of the Rome Statute, even though they constitute international crimes. I fail to understand the logic in Robertson's suggestion that a court, which obviously lacks jurisdiction, provides Libyans with an appropriate forum to try Gaddafi for these crimes. Astonishingly, and still in favor of The Hague, Robertson argues that the fact that "liberation has come to the Libyans courtesy of international law, they have a reciprocal duty to abide by it." As evidence of this, Robertson cites the UN Security Council Resolution 1970 [PDF] of February 2011, which referred the situation in Libya to the ICC, and which has led to charges being filed by the ICC prosecutor against Muammar Gaddafi, his son, Saif al-Islam and Abdullah al-Senussi by the said court.

However, a close examination of UN Security Council Resolution 1970 will reveal that it has nothing whatsoever to do with either the Lockerbie or Chad bombings. In fact, ICC prosecutor Luis Moreno-Ocampo has not indicted the Gaddafis for any of these crimes because he is quite simply barred by statute, thus raising one of the most unique and fascinating aspects of international criminal law. In that regard, although there is no statute of limitation for the prosecution of international crimes, several of the international penal institutions where such crimes can be prosecuted are often of limited temporal and subject matter jurisdiction. Such is the case here.

So, if the ICC prosecutor is statute barred from prosecuting Gaddafi at least in connection with the Lockerbie bombing, he is in effect devoid of the ability to reflect the totality of Gaddafi's alleged criminal conduct in court, especially as this particular crime was "international" in all its ramifications. That cannot be the right approach to seeking justice for both Libyans and the international community at large.

Robertson further cites UN Security Council Resolution 1973 mandating NATO's action in Libya to protect civilian lives, and concludes that no one can pretend that Gaddafi's regime could have been overthrown without the air, sea and logistical support provided by NATO forces. To be fair, he is not the only one that shares this view. It is the collective opinion of many in the "West." However, he likens it to a "duty" under international law, and that is what I have a problem with.

Having totally confused the temporal and subject matter jurisdiction of the ICC in relation to the events outlined above, I trust this renowned British human rights lawyer is not now suggesting that the Libyan people owe the super powers in control of NATO, immense gratitude for their "intervention" in saving the people of Libya and that the time has come for some sort of "payback," after all, as the saying goes, nothing goes for nothing. In all my years of practice as a distinguished member of the international bar, I have never come across such a notion under public international law — namely, one which imposes on a sovereign state, a "reciprocal duty to abide by international law."