Conflicts of Legitimacy A ‘legitimate’ International Criminal Court for post-Gaddafi Libya Utrecht University Megan Tollitt, 5603714 A Thesis submitted to the Board of Examiners in partial fulfilment of the requirements of the degree of Master of Arts in Conflict Studies & Human Rights. 1 Supervisor: Lauren Gould Date of Submission: 3 August 2016 Trajectory: Research and Thesis Writing (30 ECTS) Word Count: 24, 232 Word Count (including footnotes): 26, 719 “Order Libya to Surrender Gaddafi to the ICC” (Dr Meddy, Cartoon Movement, 25 August 2015) 2 Abbreviations CSO Civil Society Organization HRW Human Rights Watch ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICTY International Criminal Tribunal for the former Yugoslavia IS, ISIS Islamic State of Iraq and Syria; Islamic State of Iraq and the Levant; Daesh LFJL Lawyers for Justice in Libya NGO Non-Governmental Organization NTC Libyan National Transitional Council OPCD ICC Office of Public Counsel for the Defence OTP ICC Office of the Prosecutor PIDS ICC Public Information and Documentation Section P-TC Pre-Trial Chamber Rome Statute Rome Statute of the International Criminal Court 1998 Thuwar Libyan revolutionaries or rebels1 UDHR Universal Declaration of Human Rights UNSC United Nations Security Council UN Charter Charter of the United Nations 1945 1 Friedman (2011) 3 Contents 1. Introduction 5 1.1. Research design and method 7 2. The Analytical Concept of Legitimacy 12 2.1. Procedural legitimacy 12 2.2. Normative legitimacy 14 2.3. Sociological legitimacy 19 2.4. Mapping legitimacy 24 3. The Cases Before the Court: Saif Gaddafi and Abdullah Al-Senussi 28 3.1. Introducing the cases 28 3.2. The procedural question: Rome Statute compliance 32 Determining admissibility 32 Reconsideration for Al-Senussi 36 Trial in The Hague vs. trial in Libya 38 3.3. The normative question: due process protection 42 Due process at the national level 42 Due process at the international level 47 4. The Ongoing Violence in Libya 56 4.1. Setting the scene of continuing crimes 56 4.2. The procedural question: proper jurisdiction 58 4.3. The normative question: an impartial Court to end impunity 63 Impartial investigations 63 The norm against impunity 67 5. Conclusions 73 5.1. A ‘legitimate’ ICC for post-Gaddafi Libya? 73 5.2. Competing legitimacy 76 5.3. Final thoughts 78 6. Bibliography 79 4 1. Introduction Broadly defined, the concept of legitimacy operates as a “justification for the exercise of authority”2. Without more, it is an idea relevant in almost all stages of conflict – fuelling the discourses which initiate and escalate violence, whilst also encapsulating one of the very things post-conflict resolution efforts seek to restore. Accordingly, exploration of legitimacy requires a context-specific approach. For the purposes of the present research, the chosen focus is the International Criminal Court’s jurisdiction to investigate and make corresponding rulings in conflict regions, following alleged violations of international criminal law. Specifically, those arising from the collapse of the Gaddafi regime in Libya since 2011. From its inception in 2002, the International Criminal Court has represented an increasingly dominant “new order”3 in response to violence conflict4. The new order emphasises justice, accountability and an end to cultures of impunity for the gravest crimes, capable of afflicting entire communities by their commission. At least at an abstract level, Brants, Brants and Gould suspect that “few, if any, would question the legitimacy that derives” from such objectives5. However, as noted by the same authors, the discourse surrounding the Court has “proliferated” its functions into the sphere of peace and security, to include conflict resolution and deterrence, amongst other aims6. As proposed by the ICC itself, the Court’s pursuit of international justice “can contribute to long‐term peace, stability and equitable development in post‐conflict societies”7. As the Court enters these “unchartered waters”8, more expansive aims demand that “the ICC communicates to different audiences”9, with different expectations – which in turn leaves the institution’s legitimacy contestable. Against this backdrop, contemporary discussion of the practice of the Court in The Hague depicts its legitimacy as “far from self-evident”10 – more often characterised as in a state of “crisis”11. The problem posed for the Court derives from the fact that the demands of a 2 Danner (2003:511) 3 Nnabuike Malu (Dec 2015) 4 JURIST (n.d.) 5 Brants, Brants and Gould (2013:143) 6 Ibid. 7 ICC > About (n.d.) See too Darehshori and Evenson (2010:22); Nouwen (2012:186); and Lanz (2007:27). 8 Sumita (2007:3) 9 Brants, Brants and Gould (2013:146) 10 Takemura (2012:3) 11 Hornsby (2015) and Kersten (Feb 2015) 5 ‘legitimate’ ICC are “as ambitious as they are contradictory”12. This “ubiquity” is captured by Vasiliev: “The concept resides in the realms of political, social, and legal theory as much as in the marshy terrains of morality and political expediency.”13 As further developed by Hansen, “the ICC is often ‘trapped’ in between the demands of legalism and the demands arising out of the broader political and social context in which it operates”14. From such complexity, some have concluded that legitimacy is an impossibility for the ICC. The concept is “best understood as a Kantian antinomy – an unanswerable question that borders on the metaphysical”15. However, for a Court with an ever-expanding case load, adjudicating on issues which can both disturb the sovereignty of situation area States and attach serious potential consequences for individuals implicated in them, this conclusion cannot be satisfactory. From this premise, this thesis seeks to challenge such assertions, demonstrating – through application of a theoretical framework of legitimacy to the empirical setting of post- Gaddafi Libya – that a combination of criteria can be used to more transparently illustrate ICC legitimacy (or lack of). A deductive approach has been taken to research. Libya provides the empirical complication to test and observe a theoretically-informed understanding of legitimacy, ultimately leading to a more realistic understanding of how the concept varies in practice. The situation in Libya was brought before the ICC in early 2011, following revolutionary uprisings against 42 years of the Gaddafi regime. Following events inspired by the wider context of the Arab Spring, Libya has faced two civil wars: the first resulting in the eventual overthrow of the regime and killing of Muammar Gaddafi; and the second ongoing conflict between two rival governments stemming from the aftermath of violence16. Though Libya is not party to the ICC’s founding Rome Statute, the situation was referred on 26th February 2011 by unanimous UN Security Council Resolution 1970, acting under Article 41, Chapter VII of the UN Charter. 12 Alvarez (2004:321) in Brants, Brants and Gould (2013:143) 13 Vasiliev (2015:2) 14 Hansen (2014:1-2) 15 Kiyani (2015:Abstract) 16 BBC (April 2016) 6 In the five years following the referral, the ICC has been subjected to significant criticism regarding its Libyan interventions – dubbed the Court’s “latest failure”17, and characterised by “ongoing mistrust and rancour amongst actors with competing and conflicting interests”18. Critiques have often been couched in the language of legitimacy, as evidenced by assertions that “post-Gaddafi Libya has been a battleground for legitimacy and effect”19. However, while the issues underpinning legitimacy have been analysed in depth across several earlier ICC situation areas – notably Uganda20 and Sudan21 - less theoretically-grounded analysis of the concept appears to have been undertaken in Libya22. Aside offering a less-explored research focus, the early and expeditious referral of the Libyan hostilities to the Court also introduced new dynamics into the ICC’s interventions. As recognised by Stahn, the ICC’s role in Libya differed from its conventional “ex post facto mechanism”23. In Libya, the Court became, at least for some actors, “partially an instrument to constrain ongoing violence and secure accountability in the context of hostilities”24. On the one hand, the possibility to play a preventative role offered potential legitimising weight for the ICC. However, on the other, early interventions by the Court had the potential to “affect the course of the conflict”, shaping perceptions or even legitimising claims of rival parties25. The legitimacy of the Court’s intervention in post-Gaddafi Libya is accordingly not only meaningful for reflections on the proper role of the institution, but also on the unfolding direction of the conflict itself. Research seeking greater transparency in the ICC’s claims of legitimacy can therefore also facilitate better understanding of the far-reaching potential empirical consequences of such. 1.1. Research Design and Method Through an extensive review of the existing socio-legal literature on ideas of legitimacy in the context of international criminal justice, Chapter 2 seeks to answer several preliminary questions. First, what the different ‘factors’ of legitimacy actually are. Three constitutive 17 McDermott (August 2015) 18 Kersten (2012b:2) 19 Kersten (2012b:35) 20 See Nouwen (2013); Nouwen and Werner (2010) and Brants, Brants and Gould (2013). 21 See Nouwen (2013) and Nouwen and Werner (2010) 22 With some notable exceptions, e.g. Kersten (2014a) 23 Stahn (2012:2) 24 Ibid. 25 Sumita (2007:4) 7 understandings of the concept are identified – labelled ‘procedural’, ‘normative’ and ‘sociological’. Second, how to measure these factors; then third, on a theoretical level, how do the different components of legitimacy relate to one another? From these preliminary focuses, a theoretical framework of legitimacy is suggested, by which ICC interventions can be explored and evaluated. As introduced above, the relevant ICC interventions here are those into post-Gaddafi Libya, since 2011. Emerging dynamics from within the ongoing hostilities – notably security risks – as well as other financial and linguistic limitations, have impacted the scope of the present research. The initial intention was to explore each of the three factors of legitimacy. However, as explained in the subsequent chapter, a proper measure of the sociological account cannot, on the present definition, be achieved without access to the Libyan communities who have been affected by violations of international criminal law. Therefore, while this thesis continues to propose the sociological lens as a crucial element of a complete picture of ICC legitimacy in a given situation, it has not been possible for this (and it is suspected for most) research to explore this aspect within Libya at the present time. Two reflections result from this. First, my research puzzle became qualified to focus on the accessible measures of ‘legitimacy’: ‘How have procedural and normative factors constructed and deconstructed the legitimacy of the International Criminal Court, in its investigation and prosecution of international crimes in Libya, following the revolutionary uprisings against the Gaddafi regime, beginning February 2011 until present?’ Second, once the stability for access can be guaranteed, this thesis calls for the groundwork within Libyan communities necessary to complete the picture of legitimacy set out below. The research puzzle is answered through two case studies, explored across two chapters. First, the two cases the ICC has considered from the Libyan situation, against Saif Gaddafi and Abdullah Al-Senussi (set out in Chapter 3); second, the ongoing violence in Libya (Chapter 4). The purpose of distinguishing different ICC interventions in Libya is to produce more focused measures of legitimacy. After introduction of each case within their corresponding chapters, two sub-questions are asked in turn. The first corresponds to the theoretically-informed measure of procedural legitimacy – i.e. ICC compliance with the provisions of the Rome Statute. The second incorporates the normative measure, based on the Court’s adherence to 8 international human rights standards and norms of international criminal law, specifically here, due process rights and a norm against impunity. Division of discussion between cases was preferred to separation of the two theoretical components on the grounds that this facilitated more fluid reference to and comparison of the often overlapping procedural and normative indicators. Adopting a qualitative methodology, a mixed selection of sources was relied upon for collection of data to answer my sub-questions. The primary focus was pre-existing documentary data. This was always necessary to the extent that determining certain obligations of the ICC required examination of a number of authoritative texts – such as the Court’s founding Rome Statute, or UN Security Council Resolution 1970 on the Libyan situation. Beyond these ‘core texts’, wider documentary analysis – including public statements and reports, case law of international criminal tribunals and academic publications – accounted for most of the data collected due to both the wealth and accessibility of such information. These documents were sourced through a non-probability sample, according to relevance to the two cases set out above. In an attempt to reduce any bias in selection, relevance was determined on the basis of chains of citations produced by searches of several ‘key phrases’ on established search engines (e.g. Google Scholar, LexisNexis). For example, searching the phrase “ICC Libya impartiality” on Google Scholar led me to the doctoral thesis of Mark Kersten26, references in which in turn led me to the work of the Libyan Working Group27. In addition to documents, data was also generated through a small (again non-probability) sample of in-depth interviews. The intention here was to ask more specifically about the indicators of legitimacy, hopefully providing more focused reflections than those inferred from the literature. It emerged at an early stage that the detail and often legalistic nature of the data I sought could only be offered by a very specific sample of interviewees – e.g. ICC staff would likely require some professional proximity to the Court’s work in Libya. Potential interviewees were sourced both through reliance on a snowball method from several initial contacts at the Court; and by contacting individuals identified from the relevant literature directly through email and professional networking site Linkedin. In line with initial intentions of also exploring sociological elements of legitimacy, consistent (though ultimately unsuccessful) attempts were 26 Kersten (2014a) 27 Ferstman, Heller, Taylor and Wilmshurst (2014) 9 also made to contact NGOs and civil society organisations mandated to work within Libyan communities28. Eventually, contact was secured with a selection of insightful individuals. This included former defence counsel for Saif Gaddafi; ICC staff who had been detained in Libya; Executive Director of the International Bar Association and Assistant Counsel to the ICC, Mark Ellis, who recently wrote on trials in Libya; and academics and frequent bloggers Mark Kersten and Kevin Jon Heller. A notable absence, despite some initial contact with several individuals, is the lack of voices from within the ICC’s Office of the Prosecutor. As developed later, as Libyan interventions have, since 2011, been confined to the pre-trial stages, the Office bore the brunt of the majority of critiques levelled at the Court. OTP insights would therefore have been a valuable addition. However, for reasons set out below, how far contributions from within the Office could or would have differed from the views set out in accessible public statements of the ICC Prosecutor is questionable anyway. As I anticipated, being conveniently located to The Hague, and thus the Court’s premises, facilitated the possibility of interviews with several participants. Interviews were semi- structured, following a list of topics pertaining to the measures of legitimacy – e.g. for procedural legitimacy, various relevant Rome Statute provisions29. Alternatives were required for other interviewees (based in London and the US), which included conducting interviews over Skype, telephone conversations and sending participants a list of written, open-ended questions to offer their thoughts on. Of the alternatives, the former was the clearly preferred option, as it allowed me to capture many of the same dynamics (tone, expression) as an interview in person – though not overlooking the limitations of some connection issues. Many issues were faced with written lists of questions, most obviously simply receiving no reply once contact was established and questions were sent. This made data collection an uncertain and time-consuming process30. After relevant literature was collected, consent obtained from interviewees, and interview recordings transcribed, a thematic analysis was carried out across the data. Broad themes 28 Including Lawyers for Justice in Libya; the Libyan Lawyers Association; and No Peace Without Justice. 29 See Chapter 2.1. 30 The issues with responses to written questions are largely understandable from working professionals, and deeply saddening in the case of former defence counsel for Gaddafi who passed away in April 2016. 10