Is the European Union Combating Human Trafficking in its Territory?

Introduction

In the European Union trafficking in human beings (THB) is defined as “[t]he recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.[1] Exploitation, in this context, includes “as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.”[2] It is the fastest growing criminal industry[3] and Western and central Europe are both main destination areas and areas of significant origin.[4] Member States registered 15,846 women, men, girls and boys as victims of trafficking during the years 2013-2014.[5] However, it is a recognized fact that the registered number of victims accounts merely for the victims that have been successfully both found and identified as victims of trafficking, whilst many go unnoticed.[6] Rooted in racism, poverty and social marginalization[7], all of which are on a rise[8], it does not look to be an industry which will die anytime soon. The deficit of decent jobs and the increasing economic inequality[9], as well as the ongoing migration crisis, are sure to render all the more individuals vulnerable to trafficking within the EU.

Union legislation

The Union’s key instruments

To combat THB, the EU has set in place multiple instruments, of which the most recent and most specific to the problem is the EU Directive on Trafficking in Human Beings (Directive 2011/36/EU). In an introduction to its commentary soon after the adoption of the Directive in the EU the UN stated that the Directive “is the most recent sign of the continued commitment of the European Union in this field. The Directive represents a critical step in addressing human trafficking comprehensively.”[10] This is brought into focus especially considering that the EU’s previous instrument[11] was primarily focused on the prosecution of criminals, dedicating only one vague article to the protection of victims, whilst the Directive replacing it has as its central components both the prevention of trafficking and the protection of victims alongside the prosecution of traffickers. In a Commission’s proposal[12] the explanatory referendum recognizes that “the response to trafficking must be robust” and finds as the added value of its proposed new approach “[n]ew provisions envisaging specific treatments for vulnerable victims in criminal proceedings, aimed at preventing secondary victimisation … [b]roader scope of the provision on non application of sanctions to victims for their involvement in unlawful activities … [h]igher standard of assistance to victims”.[13] Alas, one might conclude that the EU recognized quite extensively in 2009 what it was lacking in its approach towards human trafficking at that point. The final Anti-Trafficking Directive takes all these aspects mentioned above into account, including multiple provisions on the protection of victims (Art. 12 et seq.) and on the Member States’ legal obligation to prevent trafficking from taking place (Art. 18).

Besides the Anti-Trafficking Directive, the Union has also adopted Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime. Directive 2012/29/EU replaced Council Framework Decision 2001/220/JHA. There are provisions that are especially relevant in cases of human trafficking, such as entirely new rules on the victim’s ‘right to understand and to be understood’ (Article 3), ‘right to interpretation and translation’ (Article 7), ‘right to access victim support services’ (Articles 8 and 9), completely new rules in the event of a decision not to prosecute (Article 11), protection during criminal investigations – interviews, legal assistance, medical examinations (Article 20), expanded provisions on victims with ‘specific protection needs’ (Articles 22 to 24) and new provisions requiring Member States to make victims more aware of their rights (Article 26(2))[14]. As the most recent instrument of the European Union relating to trafficking in human beings, the Victims’ Rights Directive provides a powerful accompaniment to the Anti-Trafficking Directive in its increased protection for victims of trafficking. Besides providing for ex post protection of identified victims, it also requires ex ante action, such as awareness-raising[15] and training of ‘officials likely to come into contact with victims’[16].

The older, now controversial, instruments

In instruments set in place before the recognition of relevant updates to the Union’s approach toward THB, the distinction between THB and related crimes has been blurred. The Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities[17] is a prime example of this lack of differentiation. The preamble of this Directive states as its aim “[t]he framing of a common immigration policy, including the definition of the conditions of entry and residence for foreigners and measures to combat illegal immigration”, though it has been recognized that has been recognized that THB is “not just a question of migration policy”, since “most of the victims identified are EU citizens”.[18]  THB differs from human smuggling in that it involves the use of force and does not require the crossing of a border or physical transportation, whilst human smuggling may be a transaction between two consenting parties, and the crossing of a border is a prerequisite.[19] The fact that the European Commission, among other sources, lists instruments more directly related to smuggling as legislation of human trafficking[20] such as there aforementioned Directive, the Directive defining the facilitation of unauthorised entry, transit and residence[21] and the Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence[22] illustrates that tensions between competing interests in this area of similar crimes still exist.

The uncertainty around direct effect and direct individual criminal liability

According to EU Treaty law, Directives are binding as to the result to be achieved, but Member States retain discretion to establish the means they will use to obtain that result.[23] Furthermore, case law shows that direct effect may arise from them. In the case of the Trafficking Directive, as Article 22 of the Directive states, the Member States were required to transpose this instrument into national legislation by 6 April 2013. Due to the lack of European level case law on the basis of this Directive it is hard to definitely say what stance the European Court of Justice would take on the direct effect of the Directive. Considering that THB is the only form of organized crime expressly prohibited in the EU Charter of Fundamental Rights[24] one might hope that it would therefore be given adequate protection. The Union’s criminal legislation has, however, had a tendency towards lacking direct effect against individuals[25], and Anti-Trafficking Directive being written in the form of MS obligations could indicate that this deprivation of direct effect would apply to it as well. Despite these assumptions, the fact remains that the Court is not dealing with this issue, and cases in the sphere of THB are being dealt with on the European level in the European Court of Human Rights (ECtHR)[26]. One of the most central controversies this creates in the area of THB is that the ECtHR cannot apply Union law, such as the Anti-Trafficking Directive, and relies therefore on human rights provisions for its judgements. From the perspective of criminal prosecutions this is troublesome, since the ECtHR cannot create direct individual criminal liability or direct effect against individuals, and can only sanction States.

Results of EU action and inaction

For the years 2012-2016 the EU has put in place the Strategy towards the Eradication of Trafficking in Human Beings. Its five key priorities are identifying, protecting and assisting victims of trafficking; stepping up the prevention of trafficking in human beings; increased prosecution of traffickers; enhanced coordination and cooperation among key actors and policy coherence; and increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings.[27] The contents of the five key priorities are exactly what the Anti-Trafficking Directive requires. Although within its strategy the EU has had some success, for example through “the continuation of the work of the EU informal network of national rapporteurs or equivalent mechanisms; the strengthening of the network between the Commission and the MS; the creation of a civil society platform with over 100 NGOs that work in different areas related to the fight against THB and that share their information with the Member States; the launch of an electronic platform that allows to share information, reports and experiences at EU level; the publication of many handbooks and guidelines on victims’ identification, on victims’ rights and studies on vulnerable groups”[28], the strategy itself is not a tool to implement EU legislation, but rather to encourage and help Member States to fulfil the Anti-Trafficking Directive’s requirements. Despite all this, there is no evidence to show that trafficking has significantly been reduced or that more convictions have taken place. Though two thirds of suspected traffickers were EU citizens (69 %) and the top five Member States of their citizenship were Bulgaria, Romania, Belgium, Germany, and Spain, together Romania and France accounted for around half of all reported convictions in the past three years in EU.[29] This does not speak well for the other Member States with high rates of traffickers.

The Anti-Trafficking Coordinator Vassiliadou[30] and the UN Commentary on the Trafficking Directive both indicate that implementation by the Member States is what will determine the success of the Anti-Trafficking Directive. The International Centre for Criminal Law Reform and Criminal Justice Policy points out that “[THB] is a criminal industry driven by the ability to make large profits … with negligible risk of prosecution.”[31] The European Court of Justice is in charge of effective implementation of Union law, but the EU report on the progress made during 2012-2016 maintains that “increasing the number of investigations and prosecutions on trafficking in human beings is one of the key priorities of the EU legal and policy framework. The level of prosecutions and convictions remains worryingly low.”[32] In the European Commission’s case law section of its ‘Together Against Trafficking in Human Beings’ website, which “will be regularly updated with case law from EU Member States”[33], the case law from a given year during 2005-2016 does not exceed nine cases, and during 2014-2016 only two cases have been updated to the website each year. “[I]n order to be effective any legislation to combat trafficking must be accompanied by a clear cultural shift from a culture of impunity to a culture of zero tolerance of trafficking”[34], the Committee on Women’s Rights and Gender Equality recognizes. In a situation where “a ‘one size fits all’ strategy is not efficient and where the different forms of trafficking, such as trafficking for sexual exploitation, trafficking for labour exploitation and child trafficking, need to be addressed with specific and tailored policy measures”[35] the Court can be the one to define and refine strategies that are already in place.

As Vladislava Stoyanova points out, the lack of convictions or of protection afforded to victims is not purely procedural, but related also to the substance of the Trafficking Directive which, though it “defines human trafficking and determines the minimum scope of criminalization”, also legislates that “Member States can interpret trafficking more expansively.” An example to this effect is Bulgaria where the crime of human trafficking is interpreted in an exceedingly wide way.[36] “The ‘action’ element consists of recruitment, transportation, harbouring or receipt of individuals. Any of these actions has to be committed for the purpose of debauchery, forced labour, removal of organs, keeping somebody in forceful subjection or selling the child of a pregnant woman.”[37] However, “[u]nder the Bulgarian legislation no ‘means’ element is required so that the crime of human trafficking is constituted”[38], Stoyanova notes. On the contrary, in the Finnish criminal code the definition of human trafficking begins with the ‘means’ element, stating that “[a] person who … by taking advantage of the dependent status or vulnerable state of another person or by pressuring another, … by deceiving another person or by taking advantage of a mistake made by that person, … by paying remuneration to a person who has control over another person, or … by accepting such remuneration takes control over another person, recruits, transfers, transports, receives or provides accommodation for another person for purposes of sexual …, forced labour or other demeaning circumstances or removal of bodily organs or tissues shall be sentenced for trafficking in human beings”. [39] The Commission itself does not seem to be particularly clear about the conceptual limits of trafficking either. It defines it as “the buying, selling and exploitation of adults and children. In this way, it subsumes exploitation under the definition of human trafficking.”[40]

The flexibility awarded to Member States by the Anti-Trafficking Directive leads to inconsistencies – there is a high number of prosecutions in Bulgaria,[41] but also very little assistance offered to victims, since the ‘means’ element which is absent in the criminal law definition is present in their Trafficking Act’s definition: “for persons to qualify as victims and to be offered assistance, some manner of ‘means’ should have been used against them … On the one hand, from the perspective of the national criminal law, there is a victim since a person might have been transported for the purposes of debauchery, which will be sufficient for qualifying the transportation as human trafficking. On the other hand, that same person will not be a victim and thus eligible for assistance and protection under The Trafficking Act since he/she might not have been transported by means of deception or coercion”[42].

Conclusions

The EU has begun to pay attention to and take action against THB. It has been successful in defining the crime of THB in accordance with international standards, and has legislated instruments that Member States must implement. The efforts are, however, lacking in rigour and appear to be inconsistent in the effects caused by translations into national systems, which raise “serious questions about the integrity of the definition of human trafficking” as it “gives bases for uncertainty whether individuals who are victims from the perspective of the criminal trial will receive any assistance in their capacity as victims of human trafficking”[43]. Inconsistent effects are also caused by the attention awarded to migration-centred instruments in the context of THB – directives which aim to combat illegal immigration may be relevant to human smuggling, whereas human trafficking should receive an entirely different type of reaction due to the fact that in cases of THB one party is by default the victim and should therefore be allowed victim protection measures which may not be relevant to cases of human smuggling. The Anti-Trafficking Directive sets out a clear message on the non-prosecution or non-application of penalties to the victim and this is in danger in cases where smuggling and trafficking are not specifically and intentionally separated from each other. These inconsistencies arise out of discretion given to Member States. In theory, the EU could more effectively legislate in the form of Regulations which would automatically have direct effect and could award direct effect against individuals, but in the context of its political capabilities the EU has done what it feasibly can: pointed the Member States towards the right direction and left the rest for them to figure out.

[1] Directive 2011/36/EU Article 1(1)

[2] Directive 2011/36/EU Article 1(3)

[3]  International Labour Office, (2008). ILO Action Against Trafficking in Human Beings. Geneva: ILO, p.1, International Labour Office, Profits and Poverty: The Economics of Forced Labour (2014), page 1

[4] United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, 2014

[5] Report from the Commission to the European Parliament and the Council, Report on the progress made in the fight against trafficking in human beings (2016); Brussels, 19.5.2016; COM(2016) 267 final; as required under Article 20 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims {SWD(2016) 159 final}

[6] Ibid.

[7] Dr. Ami Carpenter: “it’s rooted in racism, its rooted in poverty and social marginalization” https://www.theguardian.com/us-news/2016/jun/21/san-diego-sex-trafficking-industry-federal-report The Guardian 21.6.2016

[8] Poverty: ILO World Employment and Social Outlook 2016, p 4 “the number of employed persons living in moderate and near poverty has increased since 2000, and evidence from other sources suggests that working poverty is on the rise in Europe”

Racism: Roberto Foa, 2015, UN Creating an Inclusive Society: Evidence from Social Indicators and Trends; “Since the 1990s, negative sentiment towards migrants has been rising in many countries and regions, both in developed and developing countries” p 8, http://www.un.org/esa/socdev/egms/docs/2015/sd-agenda2030/RobertoFoaPaper.pdf (accessed 2.10.2016)

[9] ILO World Employment and Social Outlook – Trends 2016, p 4

[10] The EU Directive on Trafficking in Human Beings – A Joint UN Commentary

29 December 2011, http://www.unodc.org/unodc/en/human-trafficking/2011/the-eu-directive-on-trafficking-in-human-beings-a-joint-un-commentary.html (visited 11.11.2016)

[11] Council Framework Decision on combating trafficking in human beings (2002/629/JHA)

[12] Commission’s proposal in 2009 for a new Council Framework Decision to repeal Decision 2002/629/JHA

[13] Proposal for a Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA {SEC(2009) 358} {SEC(2009) 359}

[14] Steve Peers, 2013, Guidelines for Transposition, The EU Directive on Victims’ Rights (2012/29/EU)

[15] Directive 2012/29/EU, Article 26(2): Member States ‘shall take appropriate action, including through the Internet’, to raise awareness of the rights set out in the Directive. These measures must also aim to reduce ‘the risk of victimisation’ and minimise ‘the negative impact of crime and the risks of secondary and repeat victimisation, of intimidation and of retaliation’

[16] Directive 2012/29/EU, Article 25(1)

[17] Council Directive 2004/81/EC

[18] SWD(2014) 318 final, Commission staff working document, Mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings {COM(2014) 635 final}

[19] COM(2012) 286 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, p. 2

[20] The European Commission’s Anti-trafficking Website, Together Against Trafficking in Human Beings, https://ec.europa.eu/anti-trafficking/legislation-and-case-law/eu-legislation_en (visited 14.11.2016)

[21] Council Directive 2002/90/EC

[22] Council Framework Decision 2002/946/JHA

[23] European Union, Treaty on the Functioning of the European Union, OCJ 2010/C 83/01, Art. 288

[24] Charter of Fundamental Rights of the European Union, Article 5 (Prohibition of slavery and forced labour) paragraph 3 specifically forbids trafficking in human beings

[25] Samuli Miettinen, Criminal Law and Policy in the European Union, Routledge, 2013, p. 221

[26] European Court of Human Rights (ECrtHR), Rantsev v. Cyprus and Russia, Application No. 25965/04, 7 January 2010;  Siliadin v. France, Application No. 73316/01, 26 July 2005; Airey v. Ireland, Application No. 6289/73, 9 October 1979; Golder v. UK, Application No. 4451/70, 21

February 1975, Application No. 4451/70.

[27] COM(2012) 286 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, p. 5

[28] Myria Vassiliadou in the Commission staff working document, Mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings

[29] Eurostat Report on Trafficking in Human Beings – 2015 edition

[30] Euronews, “Europe’s sex slave shame: is enough being done to end human trafficking?”, 2014, http://www.euronews.com/2014/11/12/europe-s-sex-slave-shame-is-enough-being-done-to-fight-human-trafficking-across (visited 14.11.2016)

[31] The International Centre for Criminal Law Reform and Criminal Justice Policy, An Exploration of Promising Practices in Response to Human Trafficking in Canada (2010) page 14, http://www.humanservices.alberta.ca/documents/Human-Trafficking-in-Canada.pdf

[32] COM(2016) 267 final Report from the Commission to the European Parliament and the Council on the progress made in the fight against trafficking in human beings (2016)

[33] European Commission’s Anti-trafficking website: Together Against Trafficking in Human Beings, https://ec.europa.eu/anti-trafficking/legislation-and-case-law/case-law_en?solrsort=ds_field_publication_date%20desc (visited 14.11.2016)

[34] Committee on Women’s Rights and Gender Equality, Report on implementation of the Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims from a gender perspective (2015/2118(INI)), April 2016

[35] Ibid.

[36] Vladislava Stoyanova, ‘The Crisis of a Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian Legislation’ The International Journal of Human Rights (2013)

[37] Section IX (Trafficking of People) of the Bulgarian Criminal Code (New, State Gazette No. 92/2002). Article 159a (1) (Amended, State Gazette, No. 27/2009)

[38] Pursuant to Article 159a(2) of the Bulgarian Criminal Code, the application of certain means, for example coercion or deception, could be an aggravating circumstance

[39] Finnish Criminal Code, Chapter 25 Article 3

[40] Dr. Vladislava Stoyanova, How Many Victims of Human Trafficking in the EU? A Statistical Quagmire, 2016, EU Law Analysis Blog, http://eulawanalysis.blogspot.com.ee/2016/07/how-many-victims-of-human-trafficking.html (visited 14.11.2016)

[41] V. Stoyanova (reference 36)

[42] Ibid.

[43] Ibid.

Can the International Criminal Court Complement Libya?

 

Today I am sharing something I wrote during my second year of law school for a course on the topic of international criminal law. In this essay I explore the period following the overturn of the rule of Muammar Mohammed Abu Minyar Gaddafi in Libya, concentrating particularly on the International Criminal Court and some of the challenges it has been faced with in relation to its jurisdiction. I will look at the effect these challenges have had on the ICC’s credibility and on attainment of justice in Libya.

The Background of the Case

During what is known as the Arab Spring in 2011, Gaddafi’s authoritarian rule, which had lasted for multiple decades, was challenged by a group of rebels. The Guardian quoted the UN High Commissioner for Human Rights Navi Pillay describing the situation on February 22, soon after the demonstrations began: “The callousness with which Libyan authorities and their hired guns are reportedly shooting live rounds of ammunition at peaceful protesters is unconscionable”[1]. There was alleged use of machine guns, snipers and aircraft against civilians by the government authorities.

The International Criminal Court’s Prosecutor’s Office (OTP) started a formal investigation in Libya on the 3rd of March 2011, after the United Nations Security Council (UNSC) adopted its Resolution 1970 (2011)[2] on 26 February 2011. This Resolution, taken under the powers conferred in Chapter VII of the Charter of the United Nations to protect international peace and security, referred the situation in Libya to the ICC.[3] Following this, the situation was assigned to the Pre-Trial Chamber (PTC), which issued arrest warrants for Libyan leader Muammar Mohammed Abu Minyar Gaddafi, his son Saif Al-Islam Gaddafi, Libyan government spokesman, and Abdullah Al-Senussi, Director of Military Intelligence. Muammar Gaddafi’s case was later terminated due to his death, but Saif Gaddafi was arrested by Libyan authorities in November 2011 and Al-Senussi extradited to Libya from Mauritania the following year (September 2012).[4] Libya challenged the jurisdiction of the ICC over both cases.

Questions of Jurisdiction

The ICC’s jurisdiction is laid down in the 1998 Rome Statute and can be triggered in three ways – through State referral (Art 14), by the OTP’s Proprio Motu Power (Art 15) or when the UNSC makes a referral (Article 2/Chapter VII UN Charter) at an ad hoc basis. The ICC’s jurisdiction, which is otherwise limited to the nationality and territorial principles within the parties of the Rome Statute, can by an UNSC referral, however, be extended to non-signatories, as in the case in Libya.

The ICC’s ratione materiae includes the four core crimes (Art 5), of which crimes against humanity (Article 7) was alleged in the UNSC Resolution 1970 which granted the ICC temporal jurisdiction for actions committed after 15 February 2011[5]. The trigger mechanism alone does not grant the Court unconditional jurisdiction over all cases, but rather allows it to establish the existence of the elements necessary for the case to be admissible. Furthermore, to be captured by the Court a case shall have ‘sufficient gravity’ and shall not have been tried, or investigated and deemed unprosecutable, by a State that is genuine willing and able to practice its jurisdiction.

The principle of complementarity reflects upon the questions of unwillingness or inablility of a State to genuinely handle a case itself.[6]  In all of its cases the ICC must rely on this principle (paragraph 10 and Article 1 of the Rome Statute) to determine admissibility. According to the Rome Statute a state is able unless its judicial system has collapsed or it cannot obtain necessary evidence or testimonies. A state is willing when it is taking proceedings genuinely and not just in order to shield the person, there’s an intent of bringing the person to justice without unjustified delay, and the proceedings are conducted independently and impartially. These two conditions have, however straightforward they may seem, given raise to a conflict in interpretation. Heller describes the Rome Statute as one that: “permits the Court to find a State “unwilling or unable” only if its legal proceedings are designed to make a defendant more difficult to convict. If its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State no matter how unfair those proceedings may be.”[7] On the same token former Chief Prosecutor Luis Moreno-Ocampo stated that the ICC is not a human rights court and therefore its task is not to oversee the fairness of proceedings but rather to check the genuineness of them.[8]

According to Article 17 the Court shall declare a case inadmissible where ‘the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’. It has been argued that this gives the Court authority to recognize a state of impunity and limits its jurisdiction to act to those cases alone. In contrast, Article 17(2) does explicitly refer to due process, which has been invoked especially in transitional and human rights contexts.[9]

Article 21(3) of the Rome Statute, which defines the law applicable to the ICC, requires that ‘[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights’. Mégret and Samson argue that this article, too, does not justify admissibility based on due process violations, but rather that it guides the internal operation of the Court. Applying the provision as a basis for admissibility would be a “considerable stretch”, since it would suggest that “the Court’s failure to find a case admissible despite the existence of fair trial violations would be, in itself, a violation of human rights”.[10] Moreno-Ocampo seems to agree and has stated in the case in Libya that “[his] standard, the standard of the ICC, is that it has to be a judicial process that is not organised to shield the suspect. That’s it, that’s it”. He also added that Libya did not have to prove the trial would, in fact, be entirely fair: “I hope they do a fair trial. My point is that we are not a system to monitor fair trials. We are a system to ensure no impunity.”[11]

Teitel disagrees and takes an opposing stance, arguing: “Of course, it cannot be gainsaid that the goal of making sure that the perpetrators of these crimes avoid impunity is a major goal of international criminal justice. But in the transitional context which characterizes the ICC, avoiding impunity can hardly be the only value involved in complementarity. An equal or more compelling goal is to prevent post-conflict free fall into vengeance, vendetta, or victor’s justice”. On a similar note she considers the fact that the ICC’s Rome Statute, being a treaty, must be read in accordance with standard rules of interpretation, therefore being subject to other international obligations, such as respect of human rights. ”How does an unfair trial with the possibility of the death penalty differ from extra-judicial executions, recognized human rights violations which would themselves violate the ICC statute’s own norms?”[12], she asks. Teitel’s view is supported by the preamble of the Rome Statute, which affirms that “that the most serious crimes of concern to the international community as a whole must not go unpunished…”, though on the other hand the preamble continues: “…and that their effective prosecution must be ensured by taking measures at the national level”, which one could understand to be more in support of the perspective offered by Mégret, Samson and Moreno-Ocampo, depending on how one interprets “the most serious crimes” and “effective prosecution”. The question remains: is a lack of due process a lack of effective prosecution and therefore one of the most serious crimes?

The PTC certainly did seem to see the lack of due process as a decisive factor in determining its jurisdiction and the admissibility of the cases brought before it. Libya challenged the ICC’s jurisdiction on the inadmissibility of the cases, based on the very elements discussed above. Libya claimed an active investigation covering all the same charges contained in the ICC’s cases had been going on, producing a wide range of significant evidence. Libya therefore claimed it was genuinely willing and able, especially due to the fact that efforts and progress had been made in building judicial capacity and security.[13]

In its challenge Libya confirmed the fact that its legislation did not provide for international crimes, such as the crimes against humanity of persecution and murder, and that some of the offences with which Mr Gaddafi would potentially be charged with in their proceedings would provide for the death penalty. Due to these facts, and the difficulties Libya was facing exercising its judicial powers even after it had made efforts to restore the rule of law, the Pre-Trial Chamber (PTC) rejected Libya’s challenge to the admissibility of Saif Gaddafi’s case. The Chamber found Libya unable to genuinely carry out investigation and prosecution and therefore did not address the question of Libya’s willingness.[14]

The Chamber’s decision on the Al-Senussi case was, however, the opposite. In its decision the PTC considered the applicable legal framework, significant features of Libyan national law and assessed facts and evidence relied upon by Libya and by the Defence and the Office of Public Counsel for Victims. The facts allegedly affecting the validity of the domestic proceedings against Mr Al-Senussi were allegations that the proceedings against Mr Al-Senussi are being conducted with “unjustified delays”, lack of legal representation for Mr Al-Senussi, allegations of violations of Mr Al-Senussi’s other fundamental rights during the domestic proceedings and allegations of systemic lack of independence and impartiality of the Libyan judicial system. The PTC also analysed the facts allegedly affecting the functioning of Libya’s judicial system for the purposes of the proceedings against Mr Al-Senussi, which were lack of Governmental control over detention facilities and questions of security of judicial authorities and organs and of witnesses in the national case against Mr Al-Senussi. Based on its findings and evidence brought by both sides on these allegations, the PTC ruled that Libya was not unwilling, as “there was no indication that the proceedings against Mr Al-Senussi were being undertaken for the purpose of shielding him from criminal responsibility, … the national proceedings against Mr Al-Senussi could not be considered as tainted by an unjustified delay” and that  “[Libya] provided persuasive information showing that the investigations into Mr Al-Senussi’s case were not being conducted in a manner that is inconsistent with the intent to bring Mr Al-Senussi to justice.”[15]

The PTC then turned to the ability of Libya to practice jurisdiction. It considered the amount of evidence Libya had been able to collect as a primary evidence showing ability to carry out the proceedings despite certain security concerns. The Chamber did not think the lack of appropriate witness protection programmes amounted to inability to genuinely proceed with the case and therefore ruled that the Libyan authorities were competent to conduct the proceedings, though the PTC did state that “the Chamber is of the view that the problem of legal representation, while not compelling at the present time, holds the potential to become a fatal obstacle to the progress of the case”[16]. The evidence showing that local lawyers were willing to represent Al-Senussi was an important factor in determining the outcome of the ruling, which would suggest that the Chamber’s view of the ICC’s jurisdiction is more in line with Teitel’s than with Prosecutor Moreno-Ocampo’s.

Problems That Arise

As discussed above, Libya is very willing, and to some extent able, to practice its jurisdiction. That leads to the question: what is the role of the ICC? Is it, as argued, only to recognize impunity and then step in, or rather to also make sure international (or Western) standards of due process are followed?

One of the factors that plays a role in determining the answer to this is the relatively problematic relationship between the ICC and the UN. Parties to the Rome Statute must incorporate it into their own regimes and have a duty to cooperate, but this does not apply to non-parties such as Libya. Jurisdiction over such parties is only triggered by a UNSC referral, or of their own volition, which, given the challenges to the admissibility of their cases, is obviously not the case in Libya. The UNSC referral is therefore a challenge to both state sovereignty and the independence of the ICC. In the cases of international criminal tribunals set up by the UN, such as the ICTY and the ICTR, all states have a legal obligation to provide full cooperation. When it comes to the referral to the ICC, it is the very states in the UNSC, such as US, China and Russia that will have no legal duty to then cooperate, as they are not parties to the Rome Statute[17]. One may then wonder, does this result in a preference for these states to deal with international crimes through the ICC, as it will relieve them from all obligations? Concern has been expressed over this fact, especially as it had a very real effect on Libyan proceedings, which were the first to be triggered unanimously by the UNSC. “The Libyan situation – a seemingly best-case scenario from the perspective of the ICC’s dual quest for enforcement and legitimacy – became a worst-case one when the withdrawal of international support undermined both the Court’s bid to bring suspects into custody and its quest to maintain international credibility”[18], Peskin and Boduszynski note.

On 10 December 2014 PTC issued a finding of non-compliance by the Government of Libya with respect to the non-execution of two requests for cooperation transmitted by the ICC for surrender of Saif Gaddafi to the Court. The Court then had to refer the matter to the Security Council of the United Nations In order to obtain cooperation.[19] This non-automatic cooperation that arises from UN referrals results in time-consuming bureaucracy in cases in which time is already being spent at a worryingly slow pace due to other constraints. This, together with the ICC’s lack of its own enforcement mechanism, may lead to a question of its compatibility.

The fact that the UNSC members are immune from the jurisdiction of and cooperation duties to the only permanent international criminal court may also explain the fact that they have been willing to transfer cases they have little political interest in to the ICC. This, on the other hand, has strengthened the role the ICC has played in in Africa, a point that has received much criticism. As Okafor and Ngwaba put it: “the transitional justice orthodoxy on the role of the ICC in Africa, which increasingly appears to view transitional justice praxis as organized around a monolithic ethic requires a fixed, almost invariable (ICC-centred) international criminal justice response to atrocities committed in the context of repression or conflicts. This transitional justice orthodoxy tends to insist on and be supportive of the deployment of the ICC, as much as possible, in nearly every major conflict or postconflict situation on the vast continent, while at the same time eschewing this approach elsewhere in the world.”[20]

The relationship between the UN and the ICC is problematic on many levels. In relation to the case in Libya the UNSC also issued Resolution 1973, which referred to both the Responsibility to Protect (R2P), a relatively recent norm, and to the Protection of Civilians (PoC).[21] The resolution reads: “[The Security Council, acting under Chapter VII of the Charter of the United Nations, A.N.] authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council”[22] and as Lehmann points out, both “all necessary measures” and “to protect civilians and civilian populated areas” are very ambiguous statements.[23] Nonetheless, military intervention was thus authorized by the UNSC through the Resolution 1973, and the question that follows must be: who has jurisdiction over the actors authorized by the UN to bring about this military intervention?

Security Council Resolutions 1422, 1487 and 1497 excluded the jurisdiction of the ICC. “The question that then arises is whether a Treaty independent of the UN system can ever act as a limitation upon the Security Council’s powers under Chapter VII. In other words, whether, in the presence of this specific delineation of the role of the Security Council in limiting the exercise of jurisdiction of the ICC, it would be legally permissible for the Council to limit the ICC’s jurisdiction in any other way it pleases”, Jain writes and continues: “Article 16 clearly states that the deferral of investigation or prosecution is to be in accordance with a resolution passed by the Council acting under Chapter VII, which implies that there must be a threat to international peace and security that necessitates the deferral of proceedings by the ICC.”[24] There is, however, no explicit limitation on what is allowed under the practice of maintenance of international peace and security. Attempts were made to add the words ‘in conformity with the principles of justice and international law’ to the UN Charter whilst drafting it, but the attempts failed due to the fear they would limit the powers of the UNSC too harshly.[25] Therefore the UN has allowed the UNSC large discretion in how to maintain the main objective of peace and security whilst also excluding itself from the jurisdiction of the ICC, even in the territories that ICC otherwise has jurisdiction over. Does this create a culture of impunity of its own?

The UNSC Resolution 1973 condemned ‘the gross and systematic violations of human rights, including arbitrary detentions, enforced disappearances, torture, and summary executions’, some of which are under the ICC’s ratione materiae and some are not. In the same manner in its Resolution 1970 the UNSC was “[e]xpressing grave concern at the situation in the Libyan Arab Jamahiriya and condemning the violence and use of force against civilians, [d]eploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government”. As was discussed alongside the assessment of the ICC’s jurisdiction, it is not clear whether or not the ICC has jurisdiction over impunity alone, or also in cases of human rights violations. Whilst that discussion is ongoing, another may arise over the fact that the role of the UN Resolutions and Referrals affecting the ICC’s and its own involvement have not addressed its authority over the ICC’s jurisdiction. Can the UNSC give wider jurisdiction ratione materiae through its referral which has human rights as a central concern? The UN may territorially and personally both broaden and limit the ICC’s jurisdiction, so must the concerns it addresses in its referring documents be considered as a factor when assessing the ICC’s material jurisdiction? On this topic Teitel asks: “What is the point of convening these trials in the Hague if the international community fails to send a strong message against crimes against humanity, including against torture and other humiliating and degrading treatment? What is the point of the international referral if the necessary message is not able to deter similar such exercise of power by other political leaders or those in similar positions of control? It is a difficult message to send if this becomes a matter of local justice under ordinary criminal law, as Libya is trying to mete out by bringing the cases against Saif and Senussi, and especially so where there are irregularities in the relevant process [emphasis added].”[26] Should proceedings be at multiple levels? Can human rights and due process violations be addressed separately from international core crimes in in regional human rights courts? Can the two be separated and will that bring a unified sense of justice?

How Can We Better Facilitate Justice?

“There is an inherent value in local trials, particularly in a transitional context, which is the natural counterpoint to an assertion of international jurisdiction. Local trials maximize deterrence, encourage a sense of ownership about transitional justice, and greatly facilitate the administration of justice. Such value is immensely diluted when trials are held in international fora and according to largely foreign rituals”, Mégret and Samson argue, claiming also that foreign judgements may get “lost in translation” as they do not correspond with the normative expectations and understanding within the nation’s society. “The interest in prosecuting certain individuals domestically is even greater when these individuals held high positions and thus may hold the key to understanding past events”[27], they say. I, however, must disagree with this black and white notion of the good nature of national judgements, though I recognize the value in them as well. What about national trials that do not administer justice? What if those being prosecuted are not given rights, are tortured, and their trials are given in the same conditions as those they themselves were fostering against their people who are now seeking justice for past events? This seems to be the case in Libya, as the Office of the High Commissioner for Human Rights, Human Rights Watch[28] and other organizations cooperating with the ICC have reported. The OHCHR states that: “Due to the collapse of the criminal justice system in parts of the country, victims have little avenue to seek protection and remedy amidst total impunity. Even in those rare cases where police reports had been filed, little action was taken to open prompt, thorough, effective, impartial, and independent investigations and to bring perpetrators to justice. To the best knowledge of UNSMIL, no perpetrator belonging to an armed group has been convicted since 2011. On 28 July, the Tripoli Court of Assize issued its verdict in the trial against senior Qadhafi regime officials on charges linked to crimes committed during the 2011 conflict. Saif al-Islam Qadhafi, former intelligence chief Abdullah al-Senussi … and [seven] other defendants were sentenced to death by firing squad … the UN Support Mission in Libya (UNSMIL) has expressed serious concerns that proceedings fell short of international fair trial standards. The right to adequate defense was not upheld; complaints of torture by a number of defendants were not investigated; and prosecution relied solely on the case file as evidence, without presenting witnesses or documents in open court”[29]. Will this produce a healing truth and a transition into peace and justice? When a Libyan court sentenced Saif Gaddafi and Al-Senussi to death, former Justice Minister Salah al-Marghani, who was in power when the trial began, said it was a miscarriage of justice that would haunt Libya for a long time. In his opinion Libyans had been “deprived of finding out the truth in a fair trial to judge an era of severe tyranny”[30]. It seems as though the sentences did not sit right with many Libyans either, as “following the verdict, protests and other unrest broke out in a number of Libyan cities from where the defendants hailed or had tribal links”[31].

The Office of the High Commissioner for Human Rights (OHCHR) also expressed concern over the verdicts and sentences given in the Libyan trials. The Human Rights Office takes the stance that ending impunity is crucial, but that the administration of justice also needs to be done “with scrupulous adherence to international fair trial standards and with full respect for the rights of the defendants”. The Office makes clear that the UN opposes the use of the death penalty in all circumstances and UNSMIL emphasizes the importance of introducing legal reforms to enhance human rights and the rule of law.[32] “The Appeals Chamber of the ICC has held that for due process violations in a domestic trial to lead to a case being deemed admissible before the ICC, the violations must be “so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the accused.”[33] The Appeals Chamber has therefore set a high standard for the use of its jurisdiction, which indicates that those lacking rights in their Libyan procedures may have to look for alternative sources of justice.

Though the ICC is said to be a court of last resort, and some, such as Mégret and Samson, would prefer to believe that is what complementarity is all about, the word ‘complement’ means “a thing that contributes extra features to something else in such a way as to improve or emphasize its quality” or “… something … especially required to make a group complete”[34]. Though there are courts that could handle human rights violations by the Libyan government separately and the ICC could theoretically have jurisdiction only when impunity arises, to separate a single situation into multiple segments does not bring about a unified, complete result. If, on the other hand, complementary is viewed as an improvement or emphasis to the national system, it could contribute extra features that are especially required, such as due process (which the Rome Statute explicitly refers to), to the situation at hand. Measures have been taken to do so: material provided by the Libyan authorities is reviewed, analysed and investigated by the ICC, which cooperates with the Libyan authorities in obtaining relevant materials[35]. Chief Prosecutor Fatou Bensouda reiterates that her office “will continue to lend its support to the efforts of the Government of Libya and its international partners, such as the UN, to address impunity in Libya … Ending impunity for atrocity crimes in Libya is an important goal that is both achievable and necessary for sustainable peace and stability in the country. It is also a goal that can only be met through the joint action, commitment and substantial support of all the relevant actors.”[36]

Like Bensouda stated, the goal of ending impunity in Libya can only be achieved through teamwork amongst all separate actors.  She stresses that monetary support is crucial for the OTP to “fully play its part” in ending impunity in Libya in accordance with the Rome Statute and that therefore “the Office requested resources for additional investigations as part of its 2016 proposed budget for consideration by the States Parties of the International Criminal Court”, but has to add that “there are indications that those resources will likely not be forthcoming.[37]

The failure of the international community to cooperate with the ICC is something that will have to change in order to facilitate it working as the international institution it was set up to be. The Court’s reliance on other actors is also an inherent weakness, though it is possible that this has created positive results. The interpretation of complementarity and lack of enforcement has enabled states to deal with situations nationally as they wish when the ICC has been limited in resources and power, and has given them prerogatives and time to embrace their responsibility to deal with cases themselves, by, for example, drafting the African Criminal Court. The ICC’s incompetence, whether or not negative, could be solved by having its own enforcement mechanism. The difficult relationship of the ICC with the UN would complicate the functioning of such a mechanism, since practical jurisdictional and co-operational questions between the two are already partially unsolved. Therefore the more straightforward solution would be for the UN (and others) to be held up to the standard that they themselves have promised to comply with. Article 115 of the ICC Statute states that “the expenses of the Court …  shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations … particular in relation to the expenses incurred due to referrals by the Security Council.” It is not only monetary support that the ICC lacks, but also practical. “On 10 December 2014, Pre-Trial Chamber I found that Libya had failed to comply with the Court in relation to two requests for cooperation in relation to Saif Gaddafi – including its failure to arrest and surrender the suspect to the Court – and decided to refer the matter to the Council pursuant to article 87(7) of the Rome Statute for appropriate follow-up action. To date, Saif Gaddafi has not been surrendered to the ICC, and the Council is yet to react to the Pre-Trial Chamber I’s decision.”[38]

To what extent the ICC should “fully play its part” and what that part actually is are questions I have not yet found a definite answer to. The richness and diversity of the world’s procedural traditions should not be totally overshadowed by the Western world, but there is value in many of the requirements of a fair trial that should not be cast out for the sake of traditions that do not respect human rights. The Libyan proceedings which commenced have not brought peace and justice – quite the opposite: armed conflict has escalated and “the wide scale breakdown in law and order has left Libya divided. Extremist groups have exploited the situation to consolidate their power and to commit crimes with impunity”, the OTP argues and emphasizes that justice for the abuses committed in Libya is essential for lasting peace. The OTP also continues to “establish and develop relationships and to work with national law enforcement agencies to advance its ongoing investigation. Furthermore, where there is an overlap in activities or objectives, the OTP has assisted national investigations … continued cooperation, consultation and coordination between the Office and Libyan authorities remains crucial for the implementation of the Memorandum of Understanding concluded in November 2013 on burden-sharing regarding investigations and prosecutions in Libya.”[39] The OTP continues to monitor national proceedings and to “lend its support to the efforts of the Government of Libya and its international partners, such as the UN, to address impunity in Libya”. [40] Though perhaps on many levels the current situation has let down both Libya and the ICC in their efforts to facilitate peace and justice, it is only through such trial and error that solutions can be found. Such a solution may be the ICC’s support to the Libyan government and justice system. It may be that the ICC’s role will begin to shift more in this direction and towards positive complementarity rather than negative. Still, if the international community, through the ICC, is going to impose values foreign to Libya, it must stand behind the ICC and carry the weight of such a decision. With the support and cooperation of all actors, mutual respect for values inherent to them, and use of complementing approaches, a way to justice can and must be paved.

[1] Ian Black (2011); Gaddafi urges violent showdown and tells Libya ‘I’ll die a martyr’, http://www.theguardian.com/world/2011/feb/22/muammar-gaddafi-urges-violent-showdown (accessed 16.4.2016)

[2] S/RES/1970 (2011), “Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41”

[3] Coalition for the International Criminal Court > Cases & Situations > Libya http://www.iccnow.org/?mod=libya (accessed on 13.4.2016)

[4] Coalition for the International Criminal Court http://www.iccnow.org/?mod=libya

[5] S/RES/1970 (2011), para 4

[6] Art 17 Rome Statute

[7] K.J. Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, 17 Criminal Law Forum (CLF) (2006) 255–280, p. 257. Emphasis in original.

[8] Statement made by former ICC Prosecutor Luis Moreno-Ocampo during a visit to Libya in November 2011. Video available online at http://www.aljazeera.com/news/africa/2011/11/2011112395821170909.html (accessed on 15.4.2016)

[9] Frédéric Mégret and Marika Giles Samson (2013); Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials; Oxford Journals – Journal of International Criminal Justice (2013) 11(3), p. 571-589

[10] [9] Mégret and Samson (2013)

[11] Francois Murphy (2011); ICC prosecutor happy for Libya to try Gaddafi son, http://af.reuters.com/article/idAFJOE7AM08420111123?pageNumber=1&virtualBrandChannel=0 (accessed 15.4.2016)

[12] Ruti Teitel (2012); Local Injustice: Why We Shouldn’t Forget about Saif Gaddafi; Blog of the International Journal of Constitutional Law and ConstitutionMaking.org; http://www.iconnectblog.com/2012/10/local-injustice-why-we-shouldnt-forget-about-saif-gaddafi/ (accessed 13.4.2016)

[13] ICC: Summary of the Decision on the admissibility of the case against Mr Gaddafi

[14] Decision on the admissibility of the case against Saif Al-Islam Gaddafi; 31 May 2013; ICC-01/11-01/11

[15] Decision on the admissibility of the case against Abdullah Al-Senussi; ICC-01/11-01/11; 11 October 2013

[16] Ibid.

[17] S/RES/1970 (2011), ICC referral, para 5: “Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor”

[18] Victor Peskin and Mieczyslaw P. Boduszynski (2016); The Rise and Fall of the ICC in Libya and the Politics of International Surrogate Enforcership; Oxford Journals – International Journal of Transitional Justice

[19] Coalition for the International Criminal Court http://www.iccnow.org/?mod=libya

[20] Obiora Chinedu Okafor and Uchechukwu Ngwaba (2014); The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections; Oxford Journals – The International Journal of Transitional Justice (2015) 9 (1), p. 90-108

[21] Mark Notaras and Vesselin Popovski (2011); The Duty to Protect; United Nations University Publication, https://unu.edu/publications/articles/responsibility-to-protect-and-the-protection-of-civilians.html (accessed 23.2.2017)

[22] UNSC Res 1973 (17 March 2011) para 4

[23] Julian M. Lehmann (2012); All Necessary Means to Protect Civilians: What the Intervention in Libya Says About the Relationship Between the Jus in Bello and the Jus ad Bellum; J Conflict Security Law (Spring 2012) 17 (1), p. 117-146

[24] Neha Jain (2005); A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court; The European Journal of International Law Vol. 16 no.2 © EJIL 2005

[25] R.B. Russell (1958); A History of the United Nations Charter, p. 637

[26] [12] Teitel

[27] [9] Mégret and Samson

[28] https://www.hrw.org/middle-east/n-africa/libya (accessed 18.4.2016)

[29] OHCHR Report on the Human Rights Situation in Libya, 16 November 2015

[30] Rana Jawad (2015); Libya death sentences cast long shadow over rule of law; http://www.bbc.com/news/world-africa-33855860 (accessed 18.4.2016)

[31] OHCHR Report on the Human Rights Situation in Libya, 16 November 2015

[32] Daily Press Briefing by the Office of the Spokesperson for the Secretary-General (28 July 2015); http://www.un.org/press/en/2015/db150728.doc.htm (accessed 19.4.2016)

[33] Mrs Fatou Bensouda; Statement: 05/11/2015 – Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011)

[34] Oxford Dictionary; http://www.oxforddictionaries.com/definition/english/complement (accessed 18.4.2016)

[35] ICC’s Tenth report pursuant to paragraph 7 of UN Security Council Resolution (UNSCR) 1970 | 26 October 2015

[36] Mrs Fatou Bensouda; Statement 05/11/2015

[37] Mrs Fatou Bensouda; Statement 05/11/2015

[38] ICC’s Tenth report pursuant to paragraph 7 of UN Security Council Resolution (UNSCR) 1970 | 26 October 2015

[39] ICC’s Tenth report pursuant to paragraph 7 of UN Security Council Resolution (UNSCR) 1970 | 26 October 2015

[40] Mrs Fatou Bensouda; Statement 05/11/2015