On 23 July 2014, the United Nations Human Rights Council condemned Israel for committing war crimes in Gaza and called for a criminal investigation into these crimes. Yet, international criminal law is increasingly applying double standards.
Last week, the International Criminal Court (ICC) in The Hague decided to declare the case against Abdullah Senussi, the head of military intelligence under the Gaddafi regime, inadmissible. This means that the ICC deemed Libya “willing and able” to prosecute Senussi – suspected of crimes against humanity – domestically. Just a few days after this decision, the United States, followed by other countries, closed its embassy in Libya and evacuated all of its personnel due to the deteriorating security situation in Libya.
In February 2011, Western states – while the UN Security Council was willing to use the institution of the ICC as a legal political tool in order to have the situation in Libya referred to the ICC – were able to effectuate a “regime change” in Libya under the legal umbrella of human rights protection. That the Libyan oil reserves had already been allocated to a number of Western states during the NATO bombings was not revealed until WikiLeaks disclosed this disturbing observation.
Libya would thus be able and willing to prosecute Senussi, while the political and legal system finds itself on the brink of total collapse, and the new regime is unable to tackle the deteriorating security situation in Libya.
On May 21, 2014, Human Rights Watch reported: “The current escalation in violence in Libya... risks derailing the country’s fragile transition even further.
The situation also showcases the difficulties Libya’s judiciary will have in providing fair trial guarantees to Gaddafi and other defendants.... Successive interim authorities have failed to rein in para-militaries and establish law and order in an environment of near impunity.”
Only a month later, the Libyan foreign minister, Mohamed Abdel Aziz, reported that: “There is a complete absence of the army and the police, which are responsible for the security of the state. Armed groups are not under control.”
Al-Senussi’s right to a fair trial is, according to his lawyers who represented Senussi before the ICC and who insisted on him being tried in The Hague, at odds with the principles of international criminal law. Senussi has no access to documents in hands of the prosecution, while his case is being built on these documents. Moreover, he is unable to find a lawyer in Libya, as the lives of alleged “anti-revolutionaries” are not safe there.
How could the ICC judges have arrived at such a decision? The ICC judges reached the opposite decision in the case against Saif al-Islam Gaddafi, the second son of the ousted leader Muammar Gaddafi. According to the ICC, Saif al-Islam must be tried in The Hague. The problem is, however, that the ICC cannot obtain custody of Saif al-Islam. He is held by a militia group in Libya, who intend to try Saif al-Islam on the basis of their own rules. Maybe the ICC wanted to avoid this “problem” in the case of Senussi, so that it would not have to expose its lack of powers again. Yet, the ICC’s true motives remain unclear.
The ICC thus assumes that Senussi can receive a fair trial in Libya, despite the security situation Libya finds itself in, and that he can receive a fair trial in accordance with international criminal law standards. This, while other indictees, among which the incumbent president of Kenya Uhuru Kenyatta and his deputy president William Ruto, had to face trial in The Hague, because, according to the ICC, Kenya lingered too long with bringing the alleged criminals to justice.
And why is only the former president of Ivory Coast, Laurent Gbagbo, being prosecuted before the ICC for alleged crimes against humanity, while his opponent – the incumbent pro-Western President Allasane Ouattara – is not being subjected to ICC prosecution? According to Human Rights Watch, crimes against humanity were committed on both sides of the conflict. As yet, a convincing explanation for this prosecutorial discrepancy is lacking.
And why would Libya be deemed willing and able to prosecute its political and military leaders according to the standards of international criminal law while Kenya and Ivory Coast would be unable to do so?
Absent any convincing arguments or explanations thereto, we must ask ourselves whether “international criminal law” has turned into a political tool in the hands of authorities who have the power to measure with double – non-legal – standards. But apparently the UNSC was unable to digest this reality of international criminal justice when it dispersed its views during its session on July 23, 2014.
G.J. Alexander Knoops is a professor of international criminal law and criminal defense lawyer (inter alia before the ICTY, ICTR, SCSL and ICC), and Evelyn Bell is a researcher at Knoops’ lawyers.