Justice in Libya: the Hybrid Court Option

Just days after the killing of Muammar al-Qaddafi, the former Libyan ruler, there are unconfirmed reports that his son Saif al-Islam al-Qaddafi and his former intelligence chief Abdullah al-Senussi are both seeking to surrender themselves to the International Criminal Court (ICC), where both are the subject of arrest warrants. This latest twist again focuses attention on the relationship between Libya’s new leadership and the ICC, and on the broad question of how to obtain accountability for national and international crimes.

It is important to recognise that national and international justice efforts could run side by side in Libya. Beyond the ICC cases, the international community could help the development of innovative approaches to justice in Libya, perhaps through creating a “hybrid” court that would be able to try suspects for atrocities that constitute war crimes or crimes against humanity under international law, as well as crimes under local law.

Hybrid courts are not new, with examples such as the Special Court for Sierra Leone (SCSL) established in 2002, or the currently troubled Khmer Rouge court, the Extraordinary Chambers in the Courts of Cambodia (ECCC) which was set up in 2003. Each was tailor-made for the country in question. For instance, the Special Tribunal for Lebanon (STL), set up in 2009, was established to try only national crimes. The Bosnian War Crimes Chamber established in 2005 received cases transferred from the International Criminal Tribunal for the Former Yugoslavia. The United Nations has been instrumental in each setting, either by incorporating international legal professionals into domestic legal systems run by a UN administration such as in Kosovo and Timor-Leste, both in 2000, or through negotiating with the government concerned to establish the court within the existing national legal system.

All these courts have hired national and international staff, occasionally deliberately pairing national and international counterparts such as at the ECCC.  Hybrid courts have been based on both the civil law model with investigating judges (ECCC and STL) and also based on the common law model with the prosecutor conducting the investigation (SCSL).

Hybrid courts offer numerous benefits to national justice systems. The UN Office of the High Commissioner for Human Rights has cited several justifications for hybrid courts such as the lack of national capacity or resources, building of trust and overcoming bias or corruption, contributing to ending impunity and providing an effective remedy, and thereby potentially contributing to national reconciliation.

The development of local justice mechanisms in Libya, be they purely national or of a hybrid nature, is essential given the limited mandate of the International Criminal Court (ICC). The ICC can only try those most responsible for international crimes and the prosecutor is bound by the terms of the Security Council Resolution 1970 which limits temporal jurisdiction to post-February 15^th 2011 allegations. The full period of the Qaddafi regime therefore falls outside the scope of the ICC investigations.

The ICC Rome Statute framework recognizes the limits on the ICC’s jurisdiction through its provisions asserting that the ICC is to complement national legal processes. This principle of “complementarity” acknowledges the primary responsibility of the national authorities in providing accountability for international crimes allegedly committed by the Qaddafi regime and the Transitional National Council (TNC) beyond those indicted by the ICC. Complementarity is therefore central to the rule of law programming in building the post-Qaddafi Libya.

But setting up a hybrid court at this stage in Libya presents a number of political challenges. First, the Libyans would have to decide whether they want to pursue the option—a potentially inflammatory proposition in the current unsettled political environment. Secondly, Libya would need to provide for the security of international staff, something that would again require stability.

A potentially contentious issue will be the death penalty—the reaction to the brutal killing of Muammar al-Qaddafi has illustrated that for some Libyans, justice for the former leadership means execution. But the United Nations supports the prohibition of the death penalty and no international court has ever been empowered to try capital charges. A repeat of justice by the hang man’s rope, as seen in Iraq for Saddam Hussein, is therefore likely to cause revulsion to Libya’s international partners. The alternative of using a hybrid to pursue justice within a process of reconciliation provides a surer foundation for a stable transition.  

Should political challenges to establishing a hybrid be overcome, the question remains to what extent a hybrid court would impact on the ICC proceedings concerning Saif Al-Islam and Al-Senussi.

Given that the situation in Libya was referred to the ICC by the Security Council, international law requires States to cooperate with the Court by arresting and transferring ICC suspects to The Hague. However, all other perpetrators remain under the responsibility of the Libyan justice system. Even for the two persons sought by the ICC and still at large, there would be pre-trial proceedings designed to determine whether the national authorities are willing and able to conduct the trials themselves. Libya can make such admissibility arguments before the ICC to transfer back to Libya any suspects sought by the ICC.   

The ICC investigation in Libya remains open, so further ICC arrest warrants are also possible. In August the ICC prosecutor announced he was considering factual allegations against Khamis al-Qaddafi, who was subsequently reported to have been killed in Tripoli. However, even if further ICC arrest warrants are announced, Libya is still able to make admissibility arguments before the ICC to return the cases in Libya and the remaining perpetrators will still require a national justice process, either through domestic courts or through a hybrid court.

For the vast majority of the potential cases, Libya must prepare its justice system to process mass allegations of international crimes. A hybrid court could  be a valuable tool in the effort to secure justice.