In Libya, experts believe there is a genuine commitment from national authorities to prosecute two suspects who have been charged by the ICC. Although the ICC is still seeking to prosecute Saif al-Islam Gaddafi, judges in The Hague ruled in October that its case against former intelligence chief Abdullah al-Senussi should be tried by Libyan courts and not at the ICC. Libya, it ruled, is willing and able to try the case, although Senussi’s lawyers want him to be tried in The Hague and have appealed against the ICC’s decision.
However, some commentators say that institutional capacity issues and the volatile political environment in Libya could hamper a fair trial.
Mark Kersten, a PhD student researching justice processes in Libya at the London School of Economics, told Capital FM News that the country’s legal system was still far from established.
“The problem is that the country lacks many of the required institutions and regimes – not to mention political stability – to try (suspects) fairly and judiciously,” Kersten said.
Furthermore, the international community has paid less attention to developing the judicial system compared with other spheres in Libya.
“In Libya, the political will is there to have domestic trials but the priorities of the international community from one through to ten are security,” Whiting said. “After that you have economic issues. Few in the international community are talking about accountability.”
In Kenya, the judiciary is in the process of establishing an International Crimes Division (ICD) of the country’s High Court. This comes after the Kenyan parliament twice rejected setting up a special tribunal to try crimes committed after a disputed presidential election six years ago.
President Uhuru Kenyatta and his deputy, William Ruto, are facing trial at the ICC in connection with the violence that hit large parts of Kenya, and former broadcaster Joshua Arap Sang is on trial alongside Ruto.
Kenya’s ICD will be able to conduct investigations under the International Crimes Act, a domestic version of the Rome Statute which became part of national legislation in 2009. But it is still unclear whether once the ICD is set up, it will investigate cases relating to the 2007-08 violence. (See Setback for Kenya’s Special Court http://iwpr.net/report-news/setback-kenyas-special-court.)
A few suspects have been prosecuted locally under domestic laws, but some commentators argue that a lot more should have been done in the last six years.
“It is a very small figure, and there doesn’t seem to be much success in that regard,” Whiting said.
ICC Member States Need To Step Up
Although there is a sense that complementarity is failing, it is unclear how the situation can be turned around. The ICC has neither the resources nor the mandate to invest in developing robust national courts.
Deputy prosecutor Stewart says the ICC cannot achieve complementarity without greater cooperation from its member states.
“Countries, for obvious reasons of self-interest and self-protection, are going to be very slow to come around to prosecuting cases,” he added.
Meanwhile, David Tolbert, president of the International Centre for Transitional Justice, blames the international community more broadly for its reluctance to invest in credible criminal justice mechanisms.
“The resources necessary for (criminal justice processes) are with the development agencies and the development partners,” he told a conference on the legacy of international courts, held in the German city of Nuremberg late last year. “But if we are to do the kind of things that are necessary to support domestic prosecutions, you will need witness protection programmes, court management systems, court buildings – you are going to need a lot of resources.”
Although the international community has been vocal in its support for the ICC, Tolbert regrets that it has not provided the technical and financial support needed to help countries develop their own court systems.
“States that want to see the fight against impunity succeed [will not do so] simply by supporting the ICC,” Tolbert said. “It is about supporting national prosecutors and investigators and the courts at the national level.”
He says that in practice it has been hard to bring development agencies together to discuss how to establish stronger local judicial systems.
“Getting development partners at the table is really a difficult proposition,” Tolbert said. “They think (criminal justice) will undermine other things they are doing in the country.”
Representatives of the international community have defended their efforts to support judicial institution-building.
Margit Hellwig-Boette, the former German ambassador to Kenya, told the conference in Nuremberg that there was no shortage of international support for local prosecutions in Kenya, but that a lack of political will from the country’s government had frustrated the process. She said building local capacity could take a long time, but it became impossible when there was no local cooperation.
“The case of Kenya shows that not only the European Union but others also (supported local trials),” Hellwig-Boette said. “We were not afraid of engaging with the judiciary, but there is a lack of political will from the Kenyan government. And this is exactly where I see the problem of complementarity.”
Whiting believes the international community can act at two levels simultaneously – applying pressure on recalcitrant states, while also providing the resources needed to deliver reforms. It comes down to priorities.
“When the international community puts criminal justice first, then it can achieve common justice,” he said. “When its put it second to national security or economic interests, then predictable results will follow.”
– Judie Kaberia is Kenya Coordinator for ReportingKenya.net and Special Projects Reporter at Capital FM in Nairobi.
(This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM)
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