♦ ♦ ♦ ♦
I next turned to a vignette from Cambodia since it seemed to nicely compliment the Egyptian one. On 7 January 2014, the Cambodia National Rescue Party (CNRP) issued a press release that it had engaged an international lawyer to lead a team of international lawyers to “analyse the evidence of crimes committed by Cambodian security forces and, if justified, file a request to the Prosecutor of the International Criminal court to initiate investigations into the situation in Cambodia under Article 15 of the Rome Statute.” Seemingly, the trip wire for this investigation was an incident where military police dedicated effectively to the ruling party, the Cambodian People’s Party (CPP), shot dead five civilians, injured more and imprisoned demonstrating garment factory workers on 3 January 2014. The investigation is expected to go well beyond this incident, since the CNRP is alleging that the CPP security forces “commit illegal violent acts as part of a widespread or systematic attack against the civilian population” amounting to crimes against humanity. On the same day, the international lawyer chosen to spearhead the investigation was quoted saying that the underlying criminal acts are “likely to include murder, arbitrary imprisonment, forced transfer and persecution on political grounds,” with the likelihood of there being “tens or even hundreds of thousands of victims.”
To put this investigation commissioned by the CNRP into perspective, it was necessary to briefly discuss the ongoing political situation in Cambodia. On 28 July 2013, Cambodia held its last elections. The CPP, which has been for all intents and purposes the ruling party since the overthrow of the Khmer Rouge regime in 1979, won the elections. However, the elections according to some observers have been declared seriously flawed, with CNRP being the actual winner. The CNRP has refused to participate in the National Assembly, though at one point it had proposed sharing power with the CPP; a proposal not accepted by the CPP. The CNRP party leaders, Sam Rainsy and Kem Sokha, have since been holding demonstrations and most recently have been supporting various union leaders who have called for their members to strike over low wages and working conditions. That brings us to the events leading up to the demonstrations of 3 January 2014 and the violent response by the military police resulting in death, injuries and imprisonment of some of the demonstrators.
Cambodia, unlike Egypt, has signed on to the Rome Statute; hence the ICC has jurisdiction. Since the courts in Cambodia have been deemed in the past to be neither fair nor impartial, and since the likelihood of an objective investigation and prosecution by the national authorities is rather remote, there is a strong case for ICC intervention, provided of course the gravity test is met. And herein lies the rub. This may explain why the CNRP is calling for a wide-ranging investigation, covering years, if not decades, and including a variety of human rights violations packaged as part of a “widespread or systematic attack against civilians.”
For those of us who are familiar with the situation in Cambodia (I have been closely involved in judicial reform projects and have been an avid observer of Cambodian politics for the past 20 years), it is rather clear that human rights abuses do take place with relative impunity, while the institutions which are responsible for ensuring the rule of law are substandard, even on a good day. That said, it is obvious that the CNRP is using the violent crackdown on the demonstrators as a pretext to score politically against the CPP. It would be cynical not to conclude that the leaders of CNRP are attempting to use the ICC for their own political gains. If the CNRP was sincerely concerned (which begs the question why did they not act these ongoing humanitarian abuses prior to being declared the election looser), then why hire a law firm / NGO and engage in a public relations campaign, when it could have turned to the UN Human Rights Council and request it to establish a commission of inquiry on human rights, as was done for North Korea. But then the CNRP could not control the message or the messenger. Suffice it to say, while it is within their right to do so, it merits questioning whether the ICC is viewed by the likes of these politicians as a political instrument to be used to even up scores or pursue personal agenda.
The central question is whether using the ICC for domestic politics when party bosses have an axe to grind is limited to Cambodia, or whether this is a broader trend. While it may be too early to answer this question, the ICC / Assembly of States Parties should consider adopting modalities to combat or at least limit abusive attempts to drag the ICC into the sordid quagmire of domestic politics of member and non-member States alike.
f. The Situation in Libya
This brought me to my next vignette, the schizophrenic complementarity decision in the Libya case—The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi. It is hard to say to what extent this was a politically motivated decision with respect to Al-Senussi. Talk about drawing the short straw.
Briefly, Libya challenged the admissibility of the case against both Saif Al-Islam Gaddafi and Abdullah Al-Senussi, claiming that Libyan courts were functioning appropriately and that Libya was prepared to try them for more or less the same crimes they would be tried for at the ICC. Libya submitted that the case was “of historic importance to the Libyan people” as part of its historic transition, and that the Libyan courts were “genuinely committed to pursuing the prosecution of both accused.” Based on the principle of complementarity, Libya maintained that the national system was actively investigating Mr. Gaddafi and Mr. Al-Senussi.
Both accused have not been able to meet with their counsel of choice. There is little credible evidence from which to conclude that the courts in Libya, whether in Zintan or Tripoli, are functioning properly. The impartiality and the independence of the Libyan courts is dubious. There is little to suggest that they are capable of providing the fair trial rights guaranteed under the International Covenant on Civil and Political Rights or the Libyan Constitution: to a fair and public hearing by a competent independent and impartial tribunal; to enjoy the presumption of innocence; to be promptly informed of the nature and cause of the charges; to have adequate time and facilities for the preparation of one’s defense and to communicate with counsel of one’s own choosing; to be tried without undue delay; to be tried in one’s presence or through legal assistance of one’s own choosing; to examine witnesses and to obtain the attendance of witnesses; not to be compelled to testify against oneself; to appeal; and not to be tried or punished again for an offense for which one has already been convicted or acquitted. There is nothing to suggest that these trials, were they to go forward in Libya, would be anything other than a charade, an absurdity.
The Pre-Trial Chamber rejected Libya’s challenge to the admissibility of the case against Gaddafi, and rightly so. Gaddafi is being detained in Zintan by the Zintan Brigade, a local militia. The Pre-Trial Chamber noted the efforts of the Libyan Government in attempting to secure Gaddafi’s transfer, but found that there had been no concrete progress, and the Chamber was not persuaded that the issue would be resolved in the near future. This, as well as other concerns—the inability to obtain necessary testimony—led the Court to determine that the Libyan authorities were “unable,” within the meaning of Article 17 of the Rome Statute, to carry out the prosecution of Gaddafi:
In light of the above, although the authorities for the administration of justice may exist and function in Libya, a number of legal and factual issues result in the unavailability of the national judicial system for the purpose of the case against Mr. Gaddafi. As a consequence, Libya is, in the view of the Chamber, unable to secure the transfer of Mr. Gaddafi’s custody from his place of detention under the Zintan militia into State authority and there is no concrete evidence that this problem may be resolved in the near future. Moreover, the Chamber is not persuaded that the Libyan authorities have the capacity to obtain the necessary testimony. Finally, the Chamber has noted a practical impediment to the progress of domestic proceedings against Mr. Gaddafi as Libya has not shown whether and how it will overcome the existing difficulties in securing a lawyer for the suspect.
Because Libya was found to be “unable” to conduct the proceeding against Gaddafi—making the case admissible—the Pre-Trial Chamber did not find it relevant to discuss the willingness of the Libyan authorities to try the case. The Libyan Government seems powerless to place him under State custody to be tried in Tripoli, let alone being able to transfer him to The Hague.
Al-Senussi, who is in State custody and at the time was waiting for his trial to begin in Tripoli, would suffer a different fate. In contrast to the Gaddafi proceedings, the Pre-Trial Chamber granted the Libyan government’s request to try Al-Senussi, finding that Libya was not genuinely unwilling or unable to carry out proceedings against Al-Senussi. The Pre-Trial Chamber considered that the fact that Al-Senussi had not yet met with an attorney did not justify a finding of unwillingness or inability to conduct a proceeding. The Chamber seemed to take Libya’s word on the matter that “many local lawyers from Mr. Al-Senussi’s tribe have indicated their willingness to represent Mr. Al-Senussi. . . .”
The Pre-Trial Chamber was obviously convinced (and here is where politics may have carried the day) that Al-Senussi had nothing to fear; that he would get a fair trial in Tripoli by independent and impartial judges with all of his fair trial rights respected. To appreciate the irrationality of this decision, I pointed to the cogent declaration by Judge Christine Van den Wyngaert in the Gaddafi decision:
I agree with my colleagues that, on the basis of the record as it stands today, the case against Mr. Al-Senussi is inadmissible within the meaning of article 17 of the Statute. In particular, I agree with the proposition that Libya is only ‘unable to carry out its proceedings’ under article 17(3) of the Statute if the evidence demonstrates that Libya is unable to carry out the proceedings against Mr. Al-Senussi specifically. Accordingly, generalised security concerns in Libya, even those which lead to a substantial collapse of the national judicial system, only become dispositive under article 17(3) of the Statute if Libya is unable to proceed against Al-Senussi ‘due to’ these concerns.
Nevertheless, I cannot help but note the widely reported abduction and release of Libyan Prime Minister Ali Zeidan on 10 October 2013. It is unclear, at this point in time, what effect these events might have on the already precarious security situation in Libya. Further deterioration of the security situation could extend to Mr. Al-Senussi’s legal proceedings and, accordingly, affect Libya’s ability to carry out those proceedings.
Judge Van den Wyngaert suggested that parties to the case and Libya submit further information regarding the security situation in Libya and whether Libya is sufficiently stable to carry out proceedings against Al-Senussi. Further showing the absurdity of the Al-Senussi decision, the Security Council passed Resolution 2095 on 14 March 2013 recognizing the human rights violations and abuses in detention centers, arbitrary detentions, lack of due process, torture, and extrajudicial executions taking place in Libya:
[The Security Council e]xpresses grave concern at continuing reports of reprisals, arbitrary detentions without access to due process, wrongful imprisonment, mistreatment, torture and extrajudicial executions in Libya, calls upon the Libyan government to take all steps necessary to accelerate the judicial process, transfer detainees to State authority and prevent and investigate violations and abuses of human rights, calls for the immediate release of all foreign nationals illegally detained in Libya, and underscores the Libyan government’s primary responsibility for the protection of Libya’s population, as well as foreign nationals, including African migrants….
Recently, the independent panel of experts for the Security Council’s Libya sanctions committee reported that non-State armed actors have been ineffective and that Libya has become a primary source of illicit weapons, noting a wide range of trafficking and terrorism problems:
Today, Libya faces two threats in the security domain. The first concerns extremist groups with international associations and linkages that seek, by all possible means, to restructure the State based on their own vision. They use violence and terrorism to prevent the emergence of any legitimate force they perceive as a threat.
The Security Council (which referred the Libya situation to the ICC) has clearly recognized the Libyan judicial system as dysfunctional. What indication is there that General Al-Senussi, a political opponent of the transitional government, would receive a fair trial, or that the Libyan judicial system is capable of conducting a criminal trial up to international standards? Who among us, or better yet, which of the judges on the Pre-Trial Chamber would honestly wish to be tried in the manner in which Al-Senussi will be tried in Tripoli? It is hard to reconcile the Al-Senussi decision with the Gaddafi decision, even though factually there are differences. What is constant and common is that Libya, at least for the time being, is unable to hold a fair and credible trial. And for those reasons the ICC as the court of last resort was created in the first place. Placing the word “international” in front of the words “criminal court” conjures up images of a grand, lofty and cutting edge judicial institution. This little vignette served as a cold dose of reality, to provoke thinking on just what sort of an institution the ICC is and to what extent, if any, the US should be engaged with it.
 CNRP Press Release, International Lawyer Engaged to Assess Crimes Committed by Cambodian Security Forces, Cambodia National Rescue Party (7 January 2014), English Translation available at http://www.globaldiligence.com/9-january-2014-cambodia-global-diligence-lawyers-engaged-to-conduct-investigation-into-fatal-shootings-and-other-possible-international-crimes/ (“CNRP Press Release”).
 Mech Dara and Kevin Dyole, Police Kill 5 During Clash with Demonstrators, Cambodia Daily, 10 March 2014, available at http://www.cambodiadaily.com/archives/military-police-kill-5-during-clash-with-demonstrators-50081/.
 CNRP Press Release.
 Collin Meyn and Mech Dara, Lawyers to Assess Whether Government Crimes Worthy of ICC, Cambodia Daily, 8 January 2014, available at http://www.cambodiadaily.com/archives/lawyer-to-assess-whether-government-crimes-worthy-of-icc-50303/.
 Human Rights Watch, Cambodia: Ruling Party Orchestrated Vote Fraud, HRW.org (31 July 2013), http://www.hrw.org/news/2013/07/31/cambodia-ruling-party-orchestrated-vote-fraud. The CPP briefly shared power with the purported winner of the 1993 elections, the FUNCINPEC party until the attempted coup/counter coup of 1997. There is semi-reliable evidence that FUNCINPEC was fixing to overthrow the CPP, though the CPP in anticipation overthrew FUNCINPEC when it seemingly learned of this what was to occur. See Jeffrey Gallup, Cambodia’s Electoral System: A Window of Opportunity, Electoral Politics in South East Asia 31–2 (Singapore: FES, 2002). See e.g. Northern Illinois University Center for Southeast Asian Studies, The July 5-6 1997 “Events”: When is a coup not a coup?, Seasite.niu.edu, http://www.seasite.niu.edu/khmer/ledgerwood/july_56_1997_events.htm (last visited 10 March 2014).
 Mech Dara and Colin Meyn, Slow Start for Joint Electoral Reform Commission, Cambodia Daily, 4 March 2014, available at http://www.cambodiadaily.com/news/slow-start-for-joint-electoral-reform-commission-53427/.
 Stuart White and Meas Sokchea, Leadership of CNRP Digging In, Phnom Penh Post, 6 January 2014, available at http://www.phnompenhpost.com/national/leadership-cnrp-digging.
 U.N. Treaty Collection, Rome Statute of the International Criminal Court, Ratifications and Signatories, (last visited 10 March 2014), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.
 Human Rights Council, Rep. of the Special Rapporteur on the Situation of Human Rights in Cambodia, Twenty-Fourth Sess., A/HRC/24/36 (5 August 2013), para. 16 “Overall, the situation of the judiciary in Cambodia has not fundamentally changed since 2010. Despite some progress, the pace of judicial reform remains very slow. The challenges are the same, namely lack of independence, problems of capacity, lack of resources, widespread corruption, all resulting in a lack of confidence by the general public in the ability of the court system to provide effective remedies when human rights violations do occur.”
 For example, Human Rights Watch released an article stating that 6 men were arrested without credible evidence during the recent post-election civil unrest. Human Rights Watch, Cambodia: Free 6 Randomly Arrested During Unrest, HRW.org (20 February 2014), available at http://www.hrw.org/news/2014/02/19/cambodia-free-6-randomly-arrested-during-unrest
 An article released in the Phnom Penh Post, on 6 March 2014, states that Cambodia is ranked 91st out of 99 nations regarding its devotion to the rule of law: “The World Justice Project yesterday ranked Cambodia 91st out of 99 nations and at the bottom of the barrel regionally in terms of its devotion to the rule of law, despite its midlevel performance in terms of providing order and security,” Stuart White and May Titthara, Low Ranking for Rule of Law, Phnom Penh Post, 6 March 2014, available at http://www.phnompenhpost.com/national/low-ranking-rule-law.
 See Human Rights Council, Rep. of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, Twenty-Fifth Sess., A/HRC/25/CRP.1 (7 February 2014). The United Nations Human Rights Council at its 22nd session held on 21 March 2013, established the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK). Human Rights Council Resolution 22/13 (A/HRC/RES/22/13) mandated the Commission to investigate claimed systematic, widespread and grave violation of human rights in the DPRK, to ensure accountability for any crimes against humanity.
 Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Motion on Behalf of the Government of Libya Requesting an Oral Hearing in Respect of its Admissibility Challenge Pursuant to Article 19 of the ICC Statute (2 May 2012).
 Id., paras. 8–10.
 Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11-343, Libyan Government’s Response to the Saif Al-Islam Gaddafi “Addendum to the ‘Urgent Defence Request’ of 21 January 2013, and Request for Finding of Non-Compliance”, (29 May 2013).
 Transitional National Council (TNC) of Libya, Draft Constitutional Charter For the Transitional Stage: The Constitutional Declaration” (Benghazi, 3 August 2011), arts. 31–33. Art. 31: There shall be no crime or penalty except by virtue of the text of the law. Any defendant shall be innocent until he is proved guilty by a fair trial wherein he shall be granted the guarantees necessary to defend himself. Each and every citizen shall have the right to recourse to the judiciary authority in accordance with the law. Art. 32: The Judiciary Authority shall be independent. It shall be exercised by courts of justice of different sorts and competences. They shall issue their judgments in accordance with the law. Judges shall be independent, subject to no other authority but the law and conscience. Establishing Exceptional Courts shall be prohibited. Art. 33: Right of resorting to judiciary shall be preserved and guaranteed for all people. Each and every citizen shall have the right to resort to his natural judge. The State shall guarantee to bring the judiciary authorities near the litigants and shall guarantee the swift determination on lawsuits. Laws shall not provide for the prohibition of judiciary authority to control any administrative decree.
 International Covenant on Civil and Political Rights, 999 UNTS 171, 1057 UNTS 407, 6 ILM 368 (1967). (“ICCPR”), art. 14(1).
 Id., art. 14(2).
 Id., art. 14(3)(a).
 Id., art. 14(3)(b).
 Id., art. 14(3)(c).
 Id., art. 14(3)(d).
 ICCPR art. 14(3)(e).
 Id., art. 14(3)(g).
 Id., art. 14(5).
 Id., art. 14(7).
 Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi (31 May 2013), para. 206.
 Id., para. 207.
 Id., para. 215.
 Id., para. 216.
 Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case Against Abdullah Al-Senussi (11 October 2013), para. 176.
 Id., para. 311.
 Id., para. 292.
 Id., para. 308.
 Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Decision on the admissibility of the case against Abdullah Al-Senussi (11 October 2013), Separate Declaration of Judge Van den Wyngaert, para. 1.
 Id., para. 2.
 Id., para. 3.
 S.C. Res. 2095, U.N. Doc. 2095 (14 March 2013).
 U.N. S.C. Rep. of the Security Council, 10 March 2014, U.N. Doc. S/P.V.7130, 6 (2014).
 Human Rights Watch, Libya: Gaddafi Son, Ex-Officials, Held Without Due Process, HRW.org, (13 February 2014), available at http://www.hrw.org/news/2014/02/13/libya-gaddafi-son-ex-officials-held-without-due-process.