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1 1 of 30 1/21/ :10 PM Print Request: Current Document: 2 Time Of Request: Monday, January 21, :09:59 EST Send To: ACADUNIV, 108Q6J NORTHWESTERN UNIVERSITY LIBRARY EVANSTON, IL Terms: ((Libya, the International Criminal Court and Complementarity) and Date(geq(1/21 /2012))) Source: Journal of International Criminal Justice Project ID:

2 2 of 30 1/21/ :10 PM 2 of 2 DOCUMENTS COPYRIGHT Oxford University Press 2012 Journal of International Criminal Justice 1 May 2012 J Int Criminal Justice (2012) 10 (2): 325 LENGTH: words TOPIC: A Test for 'Shared Responsibility' TITLE: Libya, the International Criminal Court and Complementarity AUTHOR: Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University. I wish to thank Mohamed El Zeidy, Rod Rastan, Dov Jacobs, Joseph Powderly and Mark Kersten for their input and comments. [c.stahn@cdh.leidenuniv.nl] TEXT: Abstract The situation in Libya marks the first precedent in which the International Criminal Court's (ICC) intervention was coupled with the invocation of responsibility to protect (R2P). The referral was initially heralded as a victory for international justice. But it put the ICC in a delicate position. The ICC's response shows that United Nations Security Council referrals remain a species of their own in the practice of the ICC, with their own specific pitfalls and problems. Following the arrest of Saif Al-Islam Gaddafi, the situation in Libya has turned into a test case for the management of the notion of 'shared responsibility', set out by the R2P doctrine and the principle of complementarity under the ICC Statute. It highlights unresolved legal and policy dilemmas relating to: first, the interpretation of complementarity by different organs of the Court; secondly, the reach of the same conduct test; thirdly, the relationship between complementarity and cooperation (for example, sequencing of proceedings under Articles 89(4) and 94 of the ICC Statute); and fourthly, the relevance of due process and sentencing considerations under the admissibility regime. CRIMINAL LAW 1. Introduction The response to the situation in Libya constitutes a test case for international justice and the idea of 'shared responsibility', n1 embraced by the responsibility to protect (R2P) doctrine n2 and the principle of complementarity under the Rome Statute. n3 The decision of the United Nations (UN) Security Council in Resolution 1970 (2011) to refer the situation in Libya to the International Criminal Court (ICC) after the failure of the Gaddafi regime 'to protect its population', n4 marked the first incident in the practice of the Security Council in which an ICC referral was expressly associated with the R2P concept. n5 The protection against core crimes therefore took a central place in the collective security response. n6 Following the authorization of the use of force 'to protect civilians and civilian populated areas under threat of attack' in Security Council Resolution 1973 (2011), n7 the ICC mandate co-existed side by side with the military enforcement mandate. n8 The jurisdiction of the ICC was therefore not solely an ex post facto mechanism, but at least partially an instrument to constrain ongoing violence and secure accountability in the context of hostilities. The referral was initially applauded by the international community and human rights organizations as a victory for international justice. n9 But in the course of the response, this enthusiasm faded. With emerging criticism regarding NATO's wide interpretation of the enforcement mandate under Resolution 1973, n10 the controversial circumstances of Muammar Mohammed Abu Minyar Gaddafi's death, n11 allegations of crimes relating to the conduct of all sides, including abuses by the opposition forces and NATO, as well as struggles over cooperation and the proper forum of jurisdiction, the role of the ICC has become a bone of contention, n12 like the military response itself. n13 Some argue that the referral to the ICC constitutes in fact a 'poisonous chalice',

3 of /21/ :10 PM n14 since it involves the Court in power politics and impartiality dilemmas. Former Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), Louise Arbour, openly called for a greater separation between the roles of the ICC and the Security Council, noting that 'the responsibility to protect and international criminal justice cannot be sheltered from political considerations when they are administered by the quintessential political body'. n15 This article analyses the reaction of the ICC to the referral and some of its challenges. It argues that key aspects of the merger between R2P and international justice (that is, the interplay between military strategy and justice intervention, the preventive role of the ICC, its possible disengagement and its role in peace building) require critical consideration and further reflection. n16 This article also examines challenges relating to the interaction with domestic jurisdictions and the interpretation of complementarity. It shows that the response of the ICC exposes, like hardly any other situation, competing visions regarding the role and mandate of the Court. Namely, tensions between judicial independence and partnership n17 and its functions as an adjudicatory body (i.e. criminal accountability forum), dispute settlement mechanism (i.e. instrument for the management of forum choices) and platform for the protection and enforcement of human rights. 2. The International Criminal Court and Security Council Referrals: plus [#231]a change, plus [#231]a reste la m[#234]me chose The relationship between the ICC and the Security Council has been marked by light and shadow. The Dafur and Libya referrals were historic, n18 and may come earlier than some had expected. n19 But existing practice shows that the interaction between the Security Council and the ICC in the aftermath of a referral remains difficult. In the Sudan context, the Security Council has done little to support arrest and cooperation. In the situation in Libya, the Security Council reacted fast to facts on the ground, shortly after the start of attacks on Benghazi and even prior to the completion of the report of the International Commission of Inquiry, n20 established by the UN Human Rights Council. n21 But this quick response came at a price. Some of the flaws of the Sudan referral such as the controversial exclusion of ICC jurisdiction over nationals of non-state parties n22 and the exclusive attribution of costs to the ICC, n23 were simply copied into the Resolution 1970 for the sake of consensus. This compromise impeded the scope of the ICC's scrutiny in the situation and its potential perception, both in terms of subject matter jurisdiction and resources. Some of these constraints became evident in November 2011 when the Office of the Prosecutor (OTP) reported to the Security Council after the end of the NATO campaign n24 that the scope of investigations and prosecutions, including of potential crimes by 'all parties to the conflict', would depend 'on the funds available to the Office to conduct the Libya investigation'. n25 The text of the Security Council referral focused specifically on 'crimes against humanity'. n26 This label was tied to the circumstances surrounding the Benghazi attacks and may have been used to establish a nexus to the R2P doctrine. n27 It shifted the terms of attention, which were initially on the conduct of the Gaddafi regime and the crimes associated with it. In line with the Court's jurisprudence, according to which 'a referral cannot limit the Prosecutor to investigate only certain crimes', n28 the ICC set out its commitment to the preservation of independence and impartiality in a separate statement. n29 This clarification was critically important, given the extension of the conflict and criticisms regarding the conflation of military and judicial intervention. n30 The ICC reacted quickly to the referral and its reaction was guided by pragmatism. The OTP completed the preliminary examination with lightning speed. n31 The Prosecutor announced the opening of the investigation in Libya on 2 March 2011, only a couple of days after the referral. n32 This is the fastest preliminary examination in the history of proceedings at the ICC and was based largely on video footage and analysis of oral statements. n33 On 27 June 2011, that is four months after the Security Council referral, Pre-Trial Chamber I issued three warrants of arrest for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the state apparatus and security forces. n34 This sequencing marked an advance over the alleged slowness of the proceedings in Darfur. n35 It was visibly designed to mitigate violence in the ongoing crisis and to isolate the Gaddafi leadership. But it also caused new tensions and a d[#233]j[#224] vu. The early issuance of arrest warrants by the ICC raised concerns regarding the prospects of a negotiated solution. Critics argued that the arrest warrants 'seriously complicate' the efforts aimed at finding a 'negotiated political settlement to the crisis in Libya', n36 or an exit with a safe haven outside Libya. n37 Like in the Sudan situation, the African Union (AU) urged members not to cooperate with the ICC. n38 Others stressed, in turn, that the arrest warrants were instrumental in the de-legitimization and gradual collapse of the Gaddafi regime. n39 Legally, the ICC refrained from engaging with the deeper problems of the Security Council referral. n40 The situation in Darfur, Sudan has shown that a Security Council referral raises a range of other issues that merit clarification, such as duties of arrest and surrender or the applicability of immunity provisions. n41 The Pre-Trial Chamber failed to address these issues early on in the Libyan context. Like the Security Council, it simply relied on previous practice, n42 namely the argument that a Security

4 4 of 30 1/21/ :10 PM Council referral renders the statutory framework as a whole applicable to the 'situation' (instead of merely triggering jurisdiction). n43 This interpretation ultimately implies that a non-state party like Libya or Sudan encounters direct obligations under the Rome Statute by virtue of the referral. The Chamber did not specify the legal foundation of this teleological interpretation (for example, its basis in the wording or object and purpose of Resolution 1970) nor the precise implications of this reading (that is, to what extent a state not party to the ICC Statute is treated akin to a state party in terms of its rights and duties and what implications this approach entails for duties of arrest). n44 This restraint is partially a missed opportunity, since it fails to engage with the conflicting position of the AU and its objections in relation to arrest and surrender. n45 This may have complicated the exercise of the mandate of the ICC. Some clarity was only provided ex post facto, after the fall of the Gaddafi regime, through a letter by the National Transitional Council (NTC) n46 as well as a controversial Pre-Trial Chamber decision, which used a communication of non-cooperation by Malawi and Chad in the Al Bashir case to confirm the inapplicability of head of state immunity in relation to international courts per se. n47 Overall, this response leaves mixed feelings. There is a certain tendency in the practice of the Security Council and the Court to rely on routine formulas and precedent, without examining the underlying merits or effects. This approach is short-sighted and may entrench biases of instrumentalization of the ICC in the context of referrals under UN Charter Chapter VII. Even more than the Darfur referral, the situation in Libya put the Court in a delicate position. Due to its close alignment to the parallel NATO action, the ICC faced double opposition. Its engagement was branded as an obstacle to peace, by critics and supporters alike and, at the same time, perceived as a prolonged arm of intervention. The OTP made additional efforts to counter this perception. n48 It indicated in particular that the conduct of NATO might fall within the ambit of its scrutiny. But this indication came relatively late and was essentially a reaction to corresponding findings on potential war crimes committed by NATO in the report of the International Commission of Inquiry. n49 3. Libya and Complementarity Policy Following the arrest of Saif Al-Islam Gaddafi the dispute over complementarity and its link to the surrender, gained key attention. n50 The initial response of the ICC shows that the Court has not yet determined a firm strategy with respect to engaging with parallel or competing proceedings at the national level. n51 The situation in Libya is particular since domestic authorities refused to surrender Saif Al-Islam Gaddafi after arrest, without making an immediate admissibility challenge. It remained unclear whether the defendant was actually in the custody of the NTC itself, or the Zintan-based rebels. There are concerns that domestic proceedings might lead to a rushed trial that falls short of meeting international human rights standards. n52 This raises the question of whether and under what conditions the ICC should defer to domestic proceedings following the issuance of arrest warrants and prior to its international custody over defendants. This decision offers similar challenges as the ad hoc tribunals' Rule 11 bis referrals to domestic courts n53 - a procedure not expressly foreseen in the ICC Statute. n54 A. Complementarity in Context The ICC policy on complementarity has been marked by a tension between firmness (for example, use of complementarity as a 'sword', reliance on 'carrots and sticks') and leniency (for example, 'dialogue', 'partnership' and 'reverse cooperation') in scrutiny. n55 Prosecutorial practice has been inconsistent. The Prosecutor stressed his duty to act n56 and his commitment to the law in some situations, such as Darfur, while leaving considerable leeway for negotiation in others. Many of the Court's first situations (Democratic Republic of the Congo, Uganda, Central African Republic) resulted from self-referrals, i.e. an activation of the jurisdiction of the ICC by choice. n57 In these situations, states preferred ICC proceedings over domestic proceedings. In Katanga, the Appeals Chamber endorsed this voluntarist approach towards the relinquishment of jurisdiction in principle, based on considerations of effectiveness. n58 In cases where the exercise of jurisdiction by the ICC has met political resistance, the Court has adopted different strategies. In the situation in Darfur, Sudan, the Court insisted on ICC jurisdiction, due to the absence of domestic investigations and prosecutions regarding its charges. The Court exercised pressure to secure the execution of the arrest warrants and emphasized, in particular, the duty of the ICC state parties to carry out requests for arrest and surrender of Omar Hassan Ahmad Al Bashir. It derived legal obligations of compliance from the Security Council referral n59 and made a finding of non-compliance based on 'inherent' powers. n60 In the situation in Kenya, the Prosecutor deployed a more consent-based approach. The OTP used domestic consent as a leverage and yardstick for the initiation of proceedings at the ICC. Following mediation efforts, the Prosecutor agreed with Kenyan authorities to prioritize domestic justice, subject to certain conditions. The conditions were specified in the Agreed Minutes, n61 which set out clear benchmarks and timelines for investigations and prosecutions by the Kenyan authorities. n62 The OTP decided to proceed with ICC investigations and prosecutions on its own motion for the first time in the history of the ICC's proceedings, n63

5 5 of 30 1/21/ :10 PM after domestic authorities failed to comply with the terms of this complementarity arrangement. n64 B. Application in the Situation in Libya In the Libyan context, the situation is slightly different. The Court acts on the basis of a Security Council referral. An international case already exists and judicial proceedings have started. There is thus arguably less leeway to negotiate the modalities and timing of justice outside the courtroom. Instead, the ICC has to determine under what circumstances it should award priority to a competing domestic investigation or prosecution (for example, proceedings related to the same 'case'), or allow a sequencing of ICC and domestic proceedings (for example, relating to a 'different case'). This choice poses partly fresh challenges. n65 The ICC Statute does not contain an express provision to 'refer' cases back to domestic authorities prior to surrender. n66 In case of competing proceedings, the Statute foresees a 'deferral' to domestic investigations, n67 a suspension of ICC proceedings, n68 as well as continuing ICC review following an admissibility challenge. n69 The conditions relating to sequencing of proceedings are even less clear and have not yet been tested in the context of the ICC. In a letter dated 23 November 2011, the NTC communicated to the ICC that 'the Libyan judiciary has primary jurisdiction to try Saif-al-Islam and that the Libyan State is willing and able to try him in accordance with Libyan law'. n70 It further delayed execution of the request for arrest and surrender relating to Saif Al-Islam Gaddafi. The option of domestic proceedings has divided the ICC. Reactions have varied across the organs of the Court and partly deviated from previous practice. The Prosecutor has shown considerable flexibility regarding domestic investigations and prosecutions (a so-called 'hands off' approach). Unlike in the situation in Darfur, the OTP failed to insist on the immediate transfer of the defendant to the Court, despite the unconditional requests for arrest and surrender. The OTP left leeway for negotiation and coordination of proceedings. n71 It proposed several options: first, priority of domestic proceedings; n72 secondly, sequencing of proceedings in accordance with Article 94 of the ICC Statute n73 provided that they 'relate to crimes that are different from those crimes pending before the Court'; n74 and thirdly, the possibility of holding ICC proceedings in Libya. n75 The OTP added that 'it was not within [its] mandate... to serve as adviser or to monitor a domestic trial'. n76 The Office of Public Counsel for the Defence (OPCD) challenged the position of the OTP in a filing. n77 It argued that the OTP's position on admissibility was inconsistent with previous practice. It noted that it 'would be unfair to apply a more stringent standard to cases in which admissibility is challenged by the Defence' and a 'more relaxed standard' in cases such as here where there might be an 'apparent coalescence of Prosecution and State interests'. n78 It further argued that the lack of transfer 'pending the resolution of admissibility proceedings' affects the rights of the defendant under 'article 55 and 67(1) of the Statute'. n79 Pre-Trial Chamber I pointed to the option of an admissibility challenge by the NTC. It stated that the ICC 'remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force'. n80 It then requested information on the status of the defendant and his legal representation. n81 These divergent reactions - leniency by the OTP and the focus on an admissibility challenge by chambers - indicate that the Court struggles to reconcile different conceptions of complementarity: namely, the traditional, 'carrot and stick' based understanding of complementarity (displayed in the situation in Darfur, Sudan) and a more managerial policy of (positive) complementarity, geared at facilitating domestic proceedings and their priority (for example, in Colombia). n82 Instead of insisting on immediate surrender on the basis of Resolution 1970, the Court left considerable space for negotiated solutions. Major intervening powers (United States, UK, France) which might have had influence on the NTC stayed silent, rather than insisting on transfer of Saif Al-Islam Gaddafi to the ICC. This may have reduced the leverage of the Court to prioritize ICC proceedings. 4. Complementarity Dilemmas The easiest way to gain clarity on the forum choice is an admissibility determination under Article 19 of the ICC Statute. This determination can be triggered in several ways. Technically, Libya can make an admissibility challenge under Article 19. n83 Alternatively, the ICC might make an admissibility determination, on request of the Prosecutor, or on its own motion, for example to put pressure on Libya to proceed with surrender. n84 The defendant can also challenge admissibility (Article 19(2)(a)) but lacks the power to enforce a specific forum choice (i.e. a 'right' to be tried internationally or domestically). In all scenarios, similar formal requirements apply. The Appeals Chamber clarified in Katanga and Bemba n85 that the admissibility assessment is based on two-step analysis, n86 requiring an examination of action/distinction prior to the assessment of unwillingness or inability. n87 This implies that Libya must specify that it is 'investigating or prosecuting the case or has investigated or prosecuted', n88 if it wishes to make an admissibility challenge under Article 19. n89 The Appeals Chamber set a high threshold. It specified in the situation in

6 of /21/ :10 PM Kenya that the state must demonstrate 'concrete investigative steps' and 'support its statement with tangible proof to demonstrate that it is actually carrying out relevant investigations'. n90 If this burden is met, the case would be found inadmissible by the ICC. Factors such as this high threshold, the state of the local domestic system or the early stage of proceedings (including uncertainty, as to the focus of domestic charges) might explain why the NTC did not make an immediate challenge. The NTC sought additional time to seek a potential division of labour or facilitate domestic proceedings. This insistence on domestic jurisdiction revealed some of the unresolved tensions inherent in the interpretation of admissibility. They relate to: first, the scope and implications of the same conduct test; secondly, the interplay between cooperation and admissibility determinations; and thirdly, the impact of due process and sentencing determinations on admissibility. A. Uncertainties of the Same Conduct Test The Court has adopted an ICC centred definition of the notion of a 'case' in its first jurisprudence. The Court clarified that the assessment must encompass 'both the person and the conduct' charged. n91 Legally, this test (the same conduct test) is based on a systematic interpretation of the ICC Statute. It is derived from a consistent application of the notion of a 'case' under the admissibility regime, namely Article 17(1)(a) and (b) and Article 17(1)(c) in conjunction with Article 20(3) n92 and the distinction between 'same conduct' and 'other conduct' in the cooperation regime, in particular under Article 90. n93 But it has been criticized on policy grounds. n94 Critics have argued that it leaves little discretion for domestic jurisdiction and requires domestic proceedings to 'mirror' ICC proceedings. n95 Existing practice raises a deeper conceptual question to what extent the test should be applied with equal strictness to stable legal systems (for example, as in Kenya) and post-conflict environments engaged in judicial sector reform or a historic transition (for example, as in Libya). n96 In the Libyan context, there is an acknowledged 'need to respect... Libyan ownership'. n97 Although Libya is a party to many relevant conventions, like the Convention against Torture as well as the Geneva Conventions and the Additional Protocols, n98 many offences, such as torture, are not criminalized as international crimes under domestic legislation. Only a few war crimes are codified. n99 There is no separate legislation regarding crimes against humanity. A domestic case might therefore not necessarily reflect similar incidents, links or context associated with atrocity crimes (for example, crimes against humanity n100 or war crimes n101 ). The ICC Statute leaves it largely unclear to what extent such factors influence the identity of the case and conditions of deference. There is in particular some controversy as to what extent the legal qualification of conduct as an international or ordinary crime might influence the differentiation of a case. The ad hoc tribunals have adopted a relatively strict approach. In Bagaragaza, the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber argued that Article 8 of the ICTR Statute 'delimits the Tribunal's authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute'. n102 It further noted that 'the Tribunal may still try a person who has been tried before a national court' if the acts were 'categorized as an ordinary crime'. n103 The ICC admissibility system offers greater flexibility than the ICTY and ICTR's Rule 11 bis deferral mechanism since it is not based on primacy of ICC jurisdiction and lacks an express 'ordinary crime' exception. Complementarity does not per se oblige states to investigate and prosecute under an international crimes label, let alone states not party to the ICC Statute. n104 There are however significant grey zones in determining the margin of appreciation open to states in framing their case. The most difficult scenarios are cases that relate to context. It is controversial whether there is room for deference in situations where domestic cases cover the same behaviour but fail to capture the context or perceived gravity of the crime. It has been argued that a different legal qualification might in some circumstances differentiate a case, for example, where the domestic charge would 'deprive the alleged offence of its essential features'. n105 This might, for instance, be the case if a perpetrator is charged as an isolated actor, that is, irrespective of a link to a state or organizational policy, to an armed conflict or the widespread or systematic commission of crimes, or where critical material or mental elements are missing. Rule11 bis enables the ad hoc tribunals to solve such conflicts by virtue of the 'gravity of the crimes' criterion. n106 The ICC, by contrast, has so far provided hardly any guidance on these key aspects of the same conduct test. This creates difficulties for the creation of a division of labour since it leaves significant uncertainties for states that seek to define domestic investigation and prosecution strategies in line with the existing admissibility test. It may have prompted the NTC to refrain from an early admissibility challenge. n107 B. Relationship between Admissibility and Cooperation An alternative option to an admissibility challenge is a division of labour based on sequencing of proceedings. The Libyan context marks the first case in which this option has been seriously contemplated following the adoption of arrest warrants. It has inter alia been suggested that a domestic case against Saif Al-Islam Gaddafi might focus on different conduct such as acts committed before 15 February n108 Scenarios in which a state investigates or prosecutes a different case do not give rise to an

7 7 of 30 1/21/ :10 PM admissibility dispute under Part 2 of the ICC Statute, but are settled on a negotiated basis, i.e. through consultation and agreement on sequencing under the cooperation regime under Part 9 ((Article 89(4) n109 and Article 94). The same or different case distinction has implications for cooperation duties and approaches towards interaction with the Court. n110 Under Resolution 1970 and the requests for arrest and surrender, Libya was under a duty to surrender Saif Al-Islam Gaddafi to the Court. The cooperation regime under the ICC Statute (which applies to Libya by virtue of Resolution 1970 according to ICC jurisprudence) n111 foresees only limited exceptions. 1. Article 95 The first exception is Article 95 of the ICC Statute. It addresses the conflict between admissibility determinations and cooperation with respect to the same case. The wording of the provision ('request under this Part', that is Part 9 of the Statute) makes it clear that it applies to all requests, including requests for arrest and surrender. n112 It opens up to a requested state the possibility to postpone the execution of a request for arrest and surrender pending the determination of an 'admissibility challenge under consideration by the Court pursuant to Article 18 or 19'. n113 This wording appears to imply that a state must first make such a challenge, before being relieved of its general duty to surrender the accused under the cooperation regime. Read jointly with conditions set out above (the same conduct test and the concrete steps requirement), it places a high burden on the state, in particular in the context of Security Council referrals where Article 18 is not applicable. n114 This may explain why it has not been officially invoked by the NTC upon arrest. 2. Articles 94 and 89(4) A second exception is Article 94 of the ICC Statute, which is complemented by Article 89(4). Article 94 offers an opportunity to postpone the execution of a request for cooperation, irrespective of a challenge under Article 19. It was invoked by the NTC in order to justify the non-surrender of Saif Al-Islam Gaddafi to the Court, pending ongoing domestic investigations and prosecutions. n115 This marks a novelty. The NTC filing dated 23 November 2011 is the first instance in which Article 94 was used to facilitate consultations on sequencing. This invocation has caused legal controversy. It is controversial to what extent Article 94 applies to requests for arrest and surrender. n116 It has been argued that Article 89 is lex specialis in relation to requests for arrest and surrender, n117 and that Article 94 was meant to apply to requests for assistance under Article 93 in light of its drafting history. n118 But based on the plain wording of the provision, a Chamber may well come to a different conclusion. It is, in particular, doubtful whether the drafters sought to exclude the postponement of the execution of requests under Article 89 in instances where a State proceeds with a 'different case'. n119 Articles 89(4) and 95 are based on a similar rationale, namely to facilitate consultations on sequencing. They must be read in light of each other. n120 Article 89(4) mandates the requested state to consult with the Court regarding the implementation of the request. n121 Both provisions presume that a solution on the prioritization of proceedings must be sought by mutual agreement. Rule 183 of the ICC RPE also specifies Article 89(4). It makes it clear that the outcome of consultations on sequencing is not pre-determined. Consultations may either result in a go ahead for ICC proceedings (via a 'temporary surrender of the person to the Court', followed by a transfer of the person back to domestic jurisdiction), or in a 'green light' for domestic proceedings. n122 A 'postponement' of surrender can thus be agreed through consultations under Article 87 (4). n123 The main question is what criteria should be used to coordinate the sequencing of different cases. This determination poses similar problems as the same conduct test. The ICC Statute fails to specify criteria for sequencing. The criteria under Article 17 are not directly applicable, since they relate essentially to conflicts involving the same cases. Some guidelines have been outlined in doctrine. n124 It has been suggested that sequencing should be determined on the basis of the comparative 'gravity' of conduct, n125 and that a different domestic case should relate to 'conduct which also constitutes a crime within the jurisdiction of the court', or at least a 'serious crime under the national law of the requesting state'. n126 Such an argument may be based on the rule of conflict set out in Article 90(7) in relation to 'competing requests', which requires the requested state to 'give special consideration' to the 'relative nature and gravity of the conduct in question'. n127 These considerations might provide a basis for an ICC case to go ahead first, for example, in light of the nature of the conduct charged. Alternative factors, such as the broader scope of conduct charged, might be invoked in favour of domestic proceedings in Libya. n128 Consultations might further address whether Libya is actually 'able' to execute the request of the Court and/or to transfer the person to the ICC after a domestic case. In the Libyan scenario, these considerations pose a particular dilemma. Sequencing might de facto result in an all or nothing choice. If proceedings relating to a different case go ahead in Libya first, there is only a remote chance that the defendant would ever stand trial in The Hague. The Court might thus have to specify criteria in order to maintain the option of proceedings before the ICC, as part of a negotiated solution. Otherwise, the ICC case will be rendered moot through the backdoor of the ('different') domestic case under Article 89(4) of the ICC Statute. A similar problem arises if proceedings are begun with respect to atrocity

8 8 of 30 1/21/ :10 PM crimes before the ICC. Rule 183 foresees the option of a 'temporary surrender' of a person to the Court. But the ICC would face difficulty to transfer a defendant back to Libya, if domestic proceedings result in the application of the death penalty. n129 Once a defendant is sentenced by the Court, the ICC has to enter into an arrangement with respect to the enforcement of a possible sentence in a 'State designated by the Court' that has indicated its 'willingness to accept sentenced persons'. n130 Any enforcement of a sentence in Libya is unlikely, given its status as non-state party to the ICC Statute, its detention regime and its current penalty provisions. n131 C. What Role should be given to Due Process and Sentencing Considerations? This leads to the last problem, namely the question to what extent international standards of fairness should influence forum choices. The judicial system in Libya has gone through a 'heavy legacy of human rights violations' under the Gaddafi regime, 'including decades of arbitrary detention, torture, arbitrary and extrajudicial executions and still unresolved disappearances'. n132 Many members of the judiciary have been associated 'with the revolution'. n133 This leaves doubts about impartiality and independence and may raise concerns related to the fairness of proceedings. The Court cannot prevent a domestic case from proceeding due to due process concerns under Article 17 of the ICC Statute. But Article 17 mandates the Court to take such due process and sentencing considerations into account in the context of a finding on the admissibility of the ICC case. n134 In the negotiations, delegations shared different opinions to what extent potential human rights violations to the detriment of the defendant should be taken into account in the determination of admissibility assessments. n135 There is an inherent tension in the ICC Statute. The ICC admissibility system is not a forum or an appeal instance to remedy general human rights violations in domestic criminal proceedings. It serves primarily as a forum to settle jurisdictional issues and correct instances in which alleged violations (such as, lack of independence or impartiality) have impeded investigation or prosecution. n136 At the same time, the Court is mandated to uphold fair trial principles and human rights guarantees under Article 21(3). This raises sensitive questions as to the scope of scrutiny exercised by the ICC, namely those standards that domestic proceedings are expected to meet and the relevance of contextual factors (for example, flexibility towards reform efforts in post-conflict settings). 1. The Statutory Framework Article 17 of the ICC Statute contains several clauses that allow the Court to take into account conflicting interests. The most general criterion is the 'genuineness' criterion, which applies to both limbs of Article 17 ('unwillingness' and 'inability'). n137 This qualifier offers the ICC a possibility not to defer in cases where domestic proceedings contain flaws in relation to the sincerity of the justice process (for example, 'an intent to bring the person concerned to justice') or capacity (for example, shortcomings in the national judicial system). n138 It does not require full symmetry with international human rights standards. But it allows the ICC to take into account human rights related elements, such as in relation to the establishment of the context to domestic proceedings. n139 An explicit requirement of due process is contained in the chapeau of Article 17(2) and Rule 51. It is specifically linked to the 'unwillingness' criteria under Article 17(2) (a)-(c). It mandates the Court to determine admissibility with 'regard to the principles of due process recognized by international law'. n140 The scope of scrutiny by the ICC over the fairness of domestic proceedings depends inter alia on the relationship between the chapeau and the notion of 'intent to bring the person concerned to justice' under Article 17(2)(b) and (c). n141 There would be little room to examine arguments of fairness related to the justice process as a whole, if this term is interpreted in a narrow sense, that is, as a result oriented requirement focused on arrest and trial. There may be some flexibility to take potential violations to the detriment of defendants into account, if the ICC interprets the notion as a more process based concept (for example, to provide justice). n142 This reading would be in line with the traditional understanding that due process guarantees protect individuals against abuses of process. n143 But it is difficult to reconcile with the general focus of Article 17(2) on 'unwillingness' to investigate or prosecute. n144 A similar conflict arises under Article 17(3) of the ICC Statute. This provision allows the Court to take structural deficiencies in relation to due process and fairness into account in the context of the 'inability' assessment. Lack of adequate due process guarantees n145 or concerns relating to the security and protection of parties and participants in proceedings may constitute impediments that render a national judicial system unavailable. But such impediments would constitute only a ground excluding deference if they make the state 'otherwise unable to carry out its proceedings'. Concerns relating to fairness of the process as such are relevant only if they constitute a factual or legal 'bar' to proceedings, n146 or potentially if they are 'so inadequate that they cannot be considered genuine proceedings'. n The Death Penalty Dilemma

9 9 of 30 1/21/ :10 PM The most controversial question in the situation in Libya is to what extent the application of the death penalty might be considered in the admissibility determination. n148 An argument to that effect might be based on Article 21(3) of the ICC Statute that provides the applicable law of the ICC must be interpreted and applied consistently 'with internationally recognized human rights'. n149 Rule 11 bis of the ICTR and ICTY's RPE specifies specifically that a case shall only be referred back to a state by a trial chamber if the accused will receive a fair trial and if 'the death penalty will not be imposed or carried out'. n150 But neither the ICC Statute nor Article 17 were directly intended to serve as a general incentive for the harmonization of sentencing provisions in domestic jurisdictions (let alone in the jurisdictions of non-state parties), or to rule out the death penalty per se. In light of the diversity of state practice, it is difficult to establish that the application of the death penalty violates international law in general, that is outside specific treaty based systems or regional contexts (such as Europe) n151 or independently of violations of other prohibitions (for example, torture and/or cruel, inhuman or degrading treatment). At the Rome conference, states were eager to maintain state sovereignty and different legal cultures, including divergent views on penalty regimes. This position is expressly reflected in Article 80 of the ICC Statute. n152 States also sought to prevent that the ICC turns into a general human rights court. A traditional interpretation of the Statute, in line with the intent of the drafters, might thus allow for a deferral of proceedings in cases where an admissibility challenge is made by a state eligible to impose the death penalty, for example, by virtue of the tolerance of legal pluralism. This view contrasts, however, with contemporary criticisms concerning the application of the death penalty, as well as the fact that other international courts such as the ICTR or the European Court of Human Rights n153 have recognized the death penalty as a bar to transfer of suspects. It is questionable whether Article 80 (which was meant to preserve flexibility in domestic legislation as to penalties) can be invoked to set aside these considerations in any proceedings before the ICC, in particular, in the context of cooperation. n154 Once a defendant has been surrendered to the Court, the Court would face difficulties to transfer a person back to a state where the death penalty is practiced, in line with existing human rights jurisprudence on the prohibition of inhuman or degrading treatment or punishment. n155 Similar principles apply in relation to positive complementarity and reverse cooperation (such as ICC cooperation with Libya). Article 93(10) allows the Court to support domestic investigations or prosecutions. n156 In the Libya scenario, such cooperation would conflict with Article 21(3), since it might make the Court complicit in proceedings that lead to imposition of the death penalty. n157 By natural instinct, ICC officials will be inclined to avoid entering into such determinations. But dilemmas concerning the death penalty might even arise outside this classical context, due to the close link between complementarity and cooperation. The treatment of the death penalty may, for instance, become relevant in sequencing negotiations, for example, in determinations to what extent the 'gravity' of the sentence is a legitimate factor for forum determination under Articles 87(4) and 94. n158 It may further gain attention in admissibility determinations, if judges consider the proportionality and modalities of domestic sentences for specific crimes, either as context, or pursuant to the due process clause under Article 17(2). Such considerations are not precluded by Article 80 since they do not per se bar the application of the death penalty at the domestic level. 5. Conclusions The rise of the Arab spring, and the historical consensus in the Security Council, with the recognition of the link between R2P and the ICC have created new hopes for the enforcement of international justice. But there is at best limited progress. The Libyan response has shown that a Security Council referral poses significant challenges to the impartiality and perception of the ICC, if international justice is coupled with intervention. The language of Resolution 1970 stands as an unfortunate precedent for future practice. The circumstances of the death of Muammar Gaddafi and the OTP reaction to potential NATO violations leave some doubts as to whether the action taken by the ICC has produced a constraining effect on all parties to the conflict, as intended by the ICC Statute. It is partly a sign of progress that the use of Article 16 of the ICC Statute was not seriously contemplated in the Libyan context. n159 But negotiations related to a division of labour with the post Gaddafi regime have highlighted some of the problems of burden sharing. The focus of the NTC on domestic proceedings against Saif Al-Islam Gaddafi has posed challenges in relation to the interplay between cooperation and complementarity, that is, surrender, forum allocation as well as the distinction and sequencing of cases. Unlike Rule 11 bis at the ad hoc tribunals, the ICC admissibility system offers no firm catalogue of guiding criteria for positive forum allocation to domestic jurisdictions and balancing of competing interests (for example, state interests, effectiveness and fairness). n160 The ICC may thus partly enter fresh ground. Organs inside the ICC have expressed different opinions. The OTP has shown initial flexibility towards the prioritization of domestic proceedings. This position may be explained by different strategic and realist considerations: the historical circumstances of the Arab spring, criticism regarding the impact of the ICC's intervention on domestic justice (in particular in Africa) and doubts about the actual prospects of transfer. Formally, this leniency coincides with a policy of 'positive complementarity', namely efforts

10 10 of 30 1/21/ :10 PM of the Court to actively encourage domestic investigation and prosecution. But it reveals deeper conceptual problems, namely the question (i) what requirements a domestic justice system must meet in order to 'warrant' ICC deference, (ii) the issue by what standards such forum choices should be guided if they relate to a country in transition and/or a State which is not party to the Statute; and (iii) the tensions that insistence on ICC standards may create locally. In the Libyan situation, attention focused quickly on the distinction of cases and a possible agreement on sequencing, in light of the strict conditions for an admissibility challenge under existing ICC jurisprudence. Article 94 has been invoked for the first time. But it poses particular difficulties in the Libyan context, since it might de facto lead to exclusion of one forum to the detriment of the other, due to the death penalty. Finally, as in other situations, little attention was devoted to long-term strategy. The ICC referral is open-ended under Resolution 1970, despite growing attention to the proper scope, limits and closure of 'situations' in ICC jurisprudence. n161 The Court is thus likely to remain on the map of Libya for a while. n162 If domestic proceedings are given priority under an admissibility or a sequencing arrangement, the Court should not shy away from monitoring proceedings or continued scrutiny. Mutual checks and balances form a corollary to, and an integral part of, a commitment to 'shared responsibility' in relation to atrocity crimes. One should thus embrace, rather than condemn them, in particular in the context of the first express use of the R2P principle in collective security action. FOOTNOTES: n1 See A. Nollkaemper and D. Jacobs, 'Shared Responsibility in International Law: A Concept Paper', Amsterdam Center for International Law Research Paper No , 2 August n2 See 2005 World Summit Outcome, 15 September 2005, adopted by United Nations (UN) General Assembly in GA Res. 60/1, 24 October 2005, [#167] [#167] 138, 139 (hereinafter 'World Summit Outcome'); Implementing the responsibility to protect: Report of the Secretary-General, UN Doc. A/63/677, 12 January 2009, [#167][#167] 18, 19. For a study, see C. Stahn, 'Responsibility to Protect: Political Rhetoric or Emerging Legal Norm', 101 American Journal of International Law (2007) 99. n3 On complementarity, see J.K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2009); M.M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Brill, 2008); C. Stahn and M.M. El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press, 2011). n4 See SC Res. 1970, 26 February 2011, Preamble. n5 SC Res. 1593, 31 March 2005, which referred the Darfur situation to the International Criminal Court (ICC), did not expressly mention the responsibility to protect (R2P) principle in connection with ICC jurisdiction.

11 11 of 30 1/21/ :10 PM n6 R2P is based on the idea that domestic authorities maintain primary responsibility to 'protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity'. See World Summit Outcome, [#167] 138. n7 See SC Res. 1973, 17 March 2011, [#167] 4. n8 On justice and intervention, see K. Anderson, 'The Rise of International Criminal Law: Intended and Unintended Consequences', 20 European Journal of International Law (2009) 331, at n9 See e.g. R.J. Goldstone, 'South-East Asia and International Criminal Law', 2 FICHL Occasional Paper Series (2011), at 18-19; M. Du Plessis and A. Louw, 'Justice and the Libyan crisis: the ICC's role under Security Council Resolution 1970', Institute for Security Studies Briefing Paper, 31 May n10 Security Council (SC) members, such as Russia, China, India, Brazil and South Africa have been critical of NATO's interpretation of the mandate under SC Res See SC, 6627th Meeting, UN Doc. S/PV.6627, 4 October n11 See Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi, Gaddafi and others (ICC-01/11-01/11-28), Pre-Trial Chamber I, 22 November n12 For a critical assessment, see D. Kaye, 'Who is Afraid of the International Criminal Court? Finding the Prosecutor Who Can Set It Straight', 90 Foreign Affairs (2011) 118. n13 On 3 October 2011, France, Germany, Portugal and the UK introduced a draft resolution on Syria, which made reference to Syria's 'primary responsibility to protect its population'. See SC, France, Germany, Portugal and United Kingdom of Great Britain and Northern Ireland: draft resolution, UN Doc. S/2011/612, 4 October 2011, [#167] 3. Russia and China vetoed the text. The Russian ambassador argued that Libya should not become 'a model for future actions of NATO in implementing the responsibility to protect'.