Dr. Mark Ellis is the Executive Director of the IBA based in London and author of the recent book Sovereignty and Justice: Balancing the Principle of Complementarity between International and Domestic War Crimes Tribunals (Cambridge Scholars, 2014). He agreed to speak with International Justice Monitor about the domestic trial in Libya for members of the former Gaddafi regime and how it impacts the situation before the International Criminal Court (ICC).

TR: You are currently overseeing a preliminary assessment of the trial that concluded in late May in Libya for 37 former Gaddafi-era regime officials. What does this entail?

ME: An objective assessment of the trial proceedings entails a number of legal factors. Principle among these is assessing the trial proceedings against internationally recognized standards of fairness and impartiality. It also includes collecting materials, such as the United Nation Support Mission in Libya’s (UNSMIL) observation notes and assessing other sources, for example, those who attend the trial proceedings including family members, defense counsel, journalists, and domestic trial observers.

The assessment being conducted is preliminary, as we still have to wait for the verdict on July 28 and the written judgment that will follow. The appeals process will also be part of the assessment.

TR: A February 2014 Human Rights Watch report cited issues relating to due process rights, including lack of access by defendants to their lawyers and no opportunity to review the evidence against them. Have any of those concerns, which have also been raised by defense counsel before the ICC, been remedied?

ME: At this stage it is very difficult for anyone to provide a clear and conclusive answer to this question. We are relying, for the most part, on the trial observations produced by UNSMIL which has done an excellent job in observing the trials. However, due to the precarious security situation in Libya, it was not always possible for UNSMIL to be physically present at the trial and transmission of the trial proceedings on various television channels was intermittent. The result is an incomplete picture of what exactly transpired in the trial proceedings.

But what we do know, on the basis of the UNSMIL observations, is that there was a tendency on the part of the judges to challenge the prosecutor, as well as to ensure that the defense was given access to all documents available to the prosecution. UNSMIL also observed that all the defendants were represented by counsel, either counsel of their choice or counsel appointed to them by the court. However, these points alone would still not guarantee a fair trial. There are other key factors that are part of this equation and a full assessment of these factors is currently being undertaken. For instance, how effective were the lawyers for the defense? During an assessment trip to Libya in January 2013, I interviewed the Deputy Minister of Justice and the President of the Libyan Bar Association. The president informed me that the bar was unable to secure qualified attorneys to represent Saif al-Islam Gaddafi. He was doubtful that any Libyan attorney would step up to represent him.

TR: Is it possible to have a fair trial of 37 defendants in a little over a year? Do you believe that the trial was sufficiently monitored by international observers?

ME: The duration of a trial is certainly an important indicator of the fairness of a trial. Trying 37 defendants in a little over a year is a daunting task, and it may be an indicator that certain rights of the defendants have been violated, such as the right to adequately prepare their defense. However, this is part of a larger set of factors that need to be collectively assessed in order to make any conclusive findings. Thus, whether it is possible to have a fair trial of 37 defendants in a little over a year depends on the specific circumstances of each case. The Iraqi trial of Saddam Hussein involved a number of different defendants and was initially criticized for being too short in duration and having too many defendants. Yet, in the post-trial assessments, these criticisms all but vanished.

TR: You were also involved in the Iraqi War Crimes Tribunal. Can you draw any comparisons with what happened in Iraq and what is happening in Libya?

ME: In both situations the trials took, or are taking, place in states emerging from repression and occurred in a post-conflict environment. Both Iraq and Libya have promoted their adherence to statutory guarantees of judicial fairness. But this is not enough. There must be an underlying and fundamental commitment within the domestic legal system to ensure a fair trial. Although domestic war crimes courts can operate successfully, they demand an untainted legal environment to deal with the unique and complicated challenges of war crimes trials. Even in the best circumstances, achieving this enormous task is difficult.

The trials took, or are taking, place in nascent legal systems that have languished in a state of chaos for decades. Both judicial systems were adversely compromised by a system manipulated and controlled by the state. Both legal systems have been isolated from the international community and international law for a generation, leaving them with a significant challenge to fully appreciate and internalize the full implications of the rule of law, as well as the many nuances of international law.

Both trials have attracted the attention of the international community because of its concern over the inherent conflict between the desire to allow post-conflict states to try their own nationals accused of international crimes and the need to ensure that those trial proceedings are fair and impartial. In the Iraqi case, some major actors in international community ensured that international assistance was provided to the court. This went a long way in giving the judicial process a degree of credibility. Unfortunately, this type of assistance is absent in the Libyan trials. Libya should have requested, and the international community should have offered, international experts to assist the judges, prosecutors, and defense counsel. Working alongside international experts would have been the surest and most effective way to shorten the learning curve for the Libyan jurists in conducting these types of trials and would have assisted in bringing international standards to the proceedings. In one of my meetings in Libya, the President of the Bar Association agreed that allowing international lawyers to join the defense team would assist in increasing the credibility of the judicial process. However, there was never any follow-up on behalf the bar.

One of the major failures of the Iraqi trials was the imposition of the death penalty. The general perception that the Iraqi Government’s primary aim was to rush to judgement and then sentence Saddam Hussein to death did not disappear. This is now a major concern in the Libyan case.

TR: What is your opinion on the assertion that what took place in Libya was a ‘show trial’?

ME: The term ‘show trial’ is a heavy charge. It is too often bantered about with little justification. The trial proceedings being witnessed in Libya are not remotely comparable to actual show trials conducted, for example, in the Soviet era by Stalin, or presently in North Korea. To date, there is very little evidence to suggest that the current proceeding is a ‘show trial’ as more accurately defined by the term. In contrast, there is evidence in the UNMSIL observation notes that efforts were made to ensure that the trial proceedings ran as smoothly as possible and, at least to some extent, in compliance with international standards. We are currently working on collecting additional information and evidence that will hopefully shed further light on this issue. However, even if the trial proceedings fail to meet international standards, it does not mean that the proceedings were a show trial.

TR: There are a number of tools you mention in your book that the international community could provide to support domestic tribunals dealing with atrocity crimes, such as training and technical assistance. What is most needed in Libya?

ME: The biggest issue that we have identified so far is the lack of information. We have limited access to the trial proceedings and the defendants – this makes assessing the trial proceedings extremely difficult. I have in the past (and in my book) called for the creation of an International Technical Assistance Office (ITAO). The ITAO’s main purpose would be to assist post-conflict states in their efforts to try international crimes at the domestic level. Among others, the ITAO would provide trial observers whose job would be to review, assess, and evaluate trials undertaken by domestic courts. Thus, what is most needed at the moment in Libya is greater access to information enabling an objective assessment of whether the trial process meets international standards of fairness and impartiality. This is the critical issue for both Libya and the international community.

TR: In December 2014, the ICC pre-trial chamber decision found Libya non-compliant with the requests of the ICC to surrender Saif Gaddafi to the court and referred the matter to the United Nations Security Council (UNSC). Is Libya continuing to violate international law by trying Gaddafi in the country? What more can be done by the court to address these concerns?

ME: Because Libya lost the ICC admissibility challenge with respect to Saif al-Islam Gaddafi, there is currently an ICC order on non-compliance against Libya for failure to surrender Saif al-Islam Gaddafi. Thus, Libya is in violation of international law, at least as defined through the ICC. Gaddafi, we think, is still being held in the town of Zintan, which was the key reason for the court’s admissibility decision. The court had found that the Libyan Government was simply unable genuinely to carry out the investigation or prosecution against him because it did not have custody over him. Gaddafi has not been seen since August 2014 and we have had no information about him since that time. He only appeared via television link three out of some 30 hearing dates, and we have no observation notes regarding those limited appearances. In essence, he was absent in 17 consecutive sessions out of the 24 reported sessions by UNSMIL. This makes it very clear that he was effectively tried in absentia.

The reality at this moment is that, even before his capture, the Libyan Government declared its intention to eventually try Gaddafi domestically. During my visit to Libya, the Minister of Justice made it crystal clear to me that that the country would not transfer Gaddafi to The Hague. The Libyan Government was, and still is, adamant that it has taken all the necessary steps to stay the hand of vengeance in favor of fair trials and justice. The Libyan Government regards the trial of Gaddafi and his cohorts as a matter of the highest national importance, not only in bringing justice for the Libyan people, but also in demonstrating that the Libyan justice system is capable of proper investigation and prosecution, and that it can conduct fair trials that meet all applicable international standards. However, until the government has custody over Gaddafi, there is little room for Libya to argue that it can implement the principle of complementarity.

TR: While the trial of Saif al-Islam Gaddafi in Libya may violate the ICC orders due to the failure of the Libyan government’s admissibility challenge, the case against Abdullah al-Senussi was declared inadmissible to the ICC by the Appeals Chamber because he was already subject to proceedings before ‘competent Libyan authorities.’ How do you reconcile these two different outcomes? Is one decision clearly wrong?

ME: I have been critical of the two decisions because of what I see as inconsistencies. For example, in assessing Libya’s general ability to prosecute under Article 17(3) of the Rome Statue, the court’s reasoning was convoluted in my opinion. It stated that Libya is ‘not unable to otherwise carry out the proceedings against Mr. al-Senussi due to a total or substantial collapse or unavailability of its national judicial system’ [emphasis added]. The court concluded that ‘the domestic proceedings… have so far not been prejudiced by… security challenges’ and, as to future proceedings, ‘the Chamber cannot conclude at this point in time that the situation is such that [his] case will be impeded from proceeding further’ by reason of poor security. This last statement is striking considering that the security situation in Libya continues to unravel. However, the court seemed to be making a distinction between the generic insecurity that might exist in any post-conflict environment and specific security issues attached to a particular trial.

However, the major difference in the decisions is one factual variance between the two cases. As stated above, while al-Senussi is in ‘official’ custody in Tripoli, where the trials are carried out, Gaddafi’s location is in question, although it seems as if he remains in the custody of militia in Zintan. We do know, however, that he has not physically appeared for any of the trial proceedings. While Gaddafi was scheduled to follow the trial via a video link from Zintan, the evidence we have reviewed suggests that he only did so for a few sessions. As stated earlier, this creates an initial presumption that he was effectively tried in abstentia.

There were other differences, although not as apparent. In the al–Senussi hearing, the ICC gave the Libyan Government and other parties an opportunity to submit additional updated evidence concerning the domestic investigation. The court’s varying rulings on legal issues common to both cases (e.g., the lack of defense counsel and effective witness protection program, and the country’s poor security environment) worked in favor of al-Senussi.

For example, in the area of witness protection, the court in the Gaddafi case expressed numerous concerns about the existence of effective witness protection programs in Libya, including the welfare of detainees and witness immunity. In the al–Senussi decision, the court’s concerns about the (established) mistreatment and torture of individuals in detention, and the clear potential of these practices to affect testimony, were not accorded anywhere near the same weight. The court ruled that Libya’s witness protection programs ‘in the concrete circumstances of the present case, [do] not result in Libya’s inability genuinely to carry out its proceedings.’

In the Gaddafi case, the court also concluded that Libya failed to demonstrate ‘whether and how it will overcome the existing difficulties in securing a lawyer for the suspect,’ owing to ‘the security situation in Libya and the risk faced by lawyers who act for associates of the former regime.’

Perhaps mindful of comparisons with the Gaddafi case, the court in the al–Senussi decision stressed the need to look at admissibility issues on a case-by-case basis. The court repeatedly mentioned the importance of assessing each case on its own particular facts.

TR: What lessons can be drawn from the Libya situation and the recently concluded trial of the former regime for future referrals by the UNSC to the ICC?

ME: The main lesson regarding the relationship between the ICC and UNSC is that the UNSC should not make referrals to the ICC if it is not ready to support/enforce arrest warrants issued by the court. The ICC depends on the Security Council to help fulfil its mandate. The ICC has no police force or enforcement body and must rely upon states and the UNSC to execute court orders, including arrest warrants. When there is non-compliance of its orders the court looks to the council to assist in forcing state compliance. However, to date, the council has been deaf to the court’s concerns about enforcement and has shown complete inertia towards referred instances of non-cooperation. While its inaction is not surprising given the political dynamics that dominate the council, it is particularly frustrating in cases where the ICC’s jurisdiction originated from a council referral. As long as the council fails to act on its own referrals to the ICC, the court will remain shackled in its dealings with non-cooperative states. This dynamic, unfortunately, weakens the principle of complementarity. If states do not believe that the court has power to enforce its own decisions, they will neither fear the consequences of inaction nor have incentives to work with the ICC in carrying out domestic prosecutions. And by disregarding all findings of non-cooperation to date, the council is effectively sanctioning breaches of international law.