The Government of Libya filed an application before the International Criminal Court earlier this month to challenge the admissibility of the cases against Saif al-Islam Gaddafi, Muammar Gaddafi’s son, and Abdullah al-Senussi, his brother-in-law and Libya’s former intelligence chief.

Gaddafi and al-Senussi face charges of two counts of crimes against humanity, but the Libyan government is adamant they should be tried in Libya and under Libyan law.

Willing and able

Libya’s representatives argue that the country is both able and willing to conduct these cases and the ICC therefore has no jurisdiction. Under the system of “complementary jurisdiction”, national judicial systems should carry out their own proceedings against suspected war criminals, and the ICC will only step in when the national system is “unwilling or unable” to do so.

There are number of principles behind this: protecting the sovereignty of states; properly allocating the limited resources of the ICC; strengthening, encouraging, and allowing autonomy to judicial systems in countries emerging from conflict; and empowering affected communities by holding trials locally, hopefully furthering reconciliation and restorative justice in the state. There is a great deal to commend this system.

The system is usually straightforward, and allows the ICC jurisdiction in situations where states are protecting the suspect, allowing impunity for atrocities (“unwilling”); or where a state desires proceedings, but due to a damaged legal system does not have the capability to run the case (“unable”).

But what happens when a country is both able and willing to exercise jurisdiction over a case, but will do so in a way that violates the rights of the accused? These rights – to the presumption of innocence, to counsel, to a fair and public hearing and to independent judges – are so well-enshrined in international law that some see them as absolute. In a situation where they may well be departed from, should this be taken into account when determining who has jurisdiction?

The rights of the accused

The ICC Statute provides that in order to determine “inability” to conduct proceedings, “the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” There is no reference to the rights of the accused.

Any argument that the rights of the accused feature in determining “ability” must fit into the argument of a collapsed or unavailable legal system. These are either that a lack of fair trial rights is evidence of a collapsed legal system; or a judicial system that cannot guarantee rights of the accused can only be properly construed as “collapsed”.

In other words, a lack of fair trial rights both indicates, and constitutes, a collapsed judicial system.

Justice done

Some argue that the text, context, purpose, and history the ICC Statute reveal that rights of the accused should not be considered when determining “ability” to prosecute. It is argued that the ICC’s jurisdiction is only triggered when states allow impunity for atrocities.

But this argument is flawed, and supposes that “justice” is nothing more than a simple conviction. The better perspective is that “justice” is conviction – or indeed, acquittal – after a trial that is fair, impartial, and in accordance with basic human rights. Justice requires convictions only after properly establishing guilt beyond a reasonable doubt.

The Libya case shows the competing issues that face international criminal law. Should the ICC examine the rights of the accused at all when determining who should try a case? To what degree should an international court allow proceedings that may not comply with accepted human rights? What is more important: state sovereignty, or the protection of the accused and the trial process?

Standing up for human rights

Whether in Libya or in the Hague, Gaddafi and Al-Senussi must be afforded all the rights they are owed under international human rights law.

The rights of the accused must be considered as a fundamental aspect of the “ability” of a judicial system to undertake proceedings. A strong stand for human rights and the rule of law should distinguish the new system from the system it overthrew.

Perhaps it can be hoped that this discussion will encourage Libya to strengthen its emerging judicial system and ensure the rule of law, by protecting the rights of the accused.