The Libya situation is one that reflects the myriad challenges faced by the ICC, in particular the reliance on member states to enforce arrest warrants (and the hope that non-member states will co-operate) as well as the effects of the ever-controversial UN Security Council referral.
The UNSC referred the situation in Libya to the ICC in February 2011. A month later the prosecutor decided to open an investigation. Gaddafi, his son Saif al-Islam Gaddafi, his brother-in-law and intelligence chief Abdullah al-Senussi were indicted by the court, and now we learn that Khaled was also on the list.
Gaddafi’s arrest warrant was withdrawn in November 2011 on confirmation of his death.
Senussi’s case ended in July 2014 when the Appeal Chamber confirmed it was inadmissible due to the then-Libyan government presenting sufficient evidence demonstrating it was capable of holding an impartial and fair trial for Senussi.
Given that the ICC is designed to be a court of last resort, only intervening when states are unwilling or unable, this should be a victory for the principle of complementarity. However, the decision to let Senussi stand trial domestically has been criticised, particularly due to the fact that he has been sentenced to death by firing squad, pending the outcome of an appeal.
Saif, the infamous son, was captured in 2011 by a militia group. He has been charged with two counts of crimes against humanity. This includes the murder and persecution of innocent civilians.
The ICC would like to put him on trial in the Hague, however, there are rightfully no trials in absentia at the court and all efforts to secure his transfer have failed.
The complexity of Saif’s situation lies in the fact that he is reportedly still being held by the Zintan militia group who do not recognise the authority of the Tripoli government or that of the court.
In addition, the Tripoli government is of the opinion that Saif should be tried domestically. To that end, they held a trial in absentia for Saif, and they sentenced him to death for war crimes in July 2015. That did little to persuade the Zintan militia group to hand him over.
The UK Guardian newspaper reported in July 2016 that, according to Saif’s lawyer, he had been granted amnesty and was no longer in custody. However, there is still no confirmation of this.
That leaves the latest unsealed arrest warrant for Khaled and brings us to the main challenge to the administration of international justice. The system depends on co-operation by states. While this is, in many ways, a virtue and it is true that there is something poetic and philosophically stimulating about a global system of justice where nations volunteer (instead of succumbing to some form of coercion) to tackle crimes that shock the conscience of humanity. However, it also constitutes one of the system's biggest flaws. Without stating the obvious, if suspects are not apprehended there can be no trial and no justice for victims.
The ICC has 14 suspects at large.
It also results in claims about the unfair distribution of justice as not every nation makes the decision to join the international justice system. Of the 195 countries in the world, only 124 are signatories to the Rome Statute. Even those who have joined have on occasion failed to co-operate with the court. The notable absence of the global super powers continues to fuel these claims. Russia, China, the US are not signatories to the Statute and they are an integral part of the next challenge to the court's legitimacy, a problem also reflected in the Libya situation: the notorious security council referral.
UNSC has the power to refer cases to the ICC. The five permanent members also have the power to veto referrals. It is a political animal regulated by national interest and political stratagem. The interests of justice, or prevention of impunity clearly do not govern the decisions made at that level. As mentioned above, three of these five permanent members are not signatories to the Rome Statute. This has been a bone of contention since the UNSC first exercised this power in 2005 with the referral of Sudan. The Libyan referral has attracted just as much dissension.
For as long as the UNSC wields such power and while states refuse to co-operate with the ICC, the court will continue to face an uphill battle.