On 26 February 2011, the UN Security Council unanimously referred the situation in Libya to the Prosecutor of the International Criminal Court (ICC).[2] Just under six years ago, the Security Council referred the situation in Sudan to the ICC.[3] Both referrals were made pursuant to Chapter VII of the UN Charter, that is, in response to a threat to international peace and security.[4] Neither Libya nor Sudan are States Parties to the Rome Statute, the ICC’s foundational document, and both retain and use the death penalty as a mode of criminal punishment.[5]

Both States’ retention of the death penalty, far more remarkable today than it would have been years ago, is markedly at odds with the ICC’s relatively lenient sentencing scheme, whose most severe punishment is a term of life imprisonment,[6] to be served under conditions “consistent with widely accepted international treaty standards governing treatment of prisoners.”[7]

The ICC’s principal objective is to ensure the most serious crimes of concern to the international community as a whole do not go unpunished.[8] In the event that the ICC tries and convicts anyone in connection with either of the Security Council-referred situations, the result may challenge basic notions of fairness, especially as understood within the Sudanese and Libyan contexts.Individuals deemed most responsible for crimes widely regarded as offensive to humanity may face lesser sentences than individuals sentenced at the national level for equally serious or less serious crimes.

From the perspective of those in the target states, and the victims in particular, the dissonance in concurrently operating national and international jurisdictions’ modes of criminal punishment may be seen as corrosive of the legitimacy of prosecutions at both levels and antithetical to the project of post-conflict reconciliation.The death penalty debate which preceded the establishment of the ICTRis instructive on this point.

Perhaps the most implacably divisive issue which arose during talks on the establishment of the ICTRwas that of punishment.  Rwanda’s wish to equip the ICTR with the death penalty,[9] a punishment it was using domestically, was easily overwhelmed by the force of the emergent international human rights regime.  Referring to the Security Council’s decision to establish the ICTR as one of importance to Rwanda but of “even more fundamental importance to the international community as a whole,”[10] Ambassador Keating of New Zealand declared that his country, as a State Party to the Second Optional Protocol to the International Covenant of Civil and Political Rights could not possibly lend its support to a Tribunal empowered to take life.  To do so, Keating explained, would be to take “a dreadful step backwards.”[11]

The only other member of the Security Council to address the matter of the death penalty was the United States, whose representative, Madeleine Albright, held the presidency at the time of the meeting.  President Albright’s reference to the subject was fleeting but clear: while the United States understood a number of Rwanda’s key concerns regarding the establishment of the international tribunal, and it may even have agreed with Rwanda on the subject of the death penalty, to force the issue would have been to shatter the Council’s broad support for the tribunal.[12]

Given the political climate that prevailed in the Security Council at the time, well exampled by New Zealand’s vociferously abolitionist stance to which no serious opposition was raised by any State save Rwanda, internationally imposed capital punishment was manifestly out of the question.

The issue had been broached during the early phases of the ICTY’s construction, where no great controversy had arisen.[13] Given the second ad hoc tribunal’s heavy architectural reliance on the blue-prints of the first,[14] there may have been a widespread feeling that previous debate, or absence thereof, had rendered the issue moot.

Interestingly, all Security Council Members States, excepting the Czech Republic, France, and New Zealand had the death penalty on their books in some form or other when the ICTR was established.[15]

The absence of detailed and sophisticated debate on the issue of the death penalty during the establishment of the two ad hoc tribunals speaks to a significant sea-change in the international community’s view of the punishment.  Just as the Allied Powers had viewed the death penalty as an entirely suitable form of punishment with which to empower the post-World War Two International Military Tribunals and Control Council Courts, such punishment’s unsuitability was, for the most part, taken as read during the deliberative stages of the ad hoc tribunals’ formation.

It is in this strongly abolitionist context that the Security Council referrals must be considered.  In the event that one or both of the referrals lead to the prosecution and conviction of individuals alleged to have committed crimes within the ICC’s jurisdiction, problems of legitimacy will likely arise, and will be largely contingent upon the nature of the legal and political systems to which the people of Sudan and Libya turn once their presidents have left power.

In the event that the post-Gadhafi Libyan administration demonstrates itself willing and able to prosecute individuals the ICC has its eye on, thereby leaping the hurdle of complementarity, there should be no need for ICC intervention, whether or not Libyan courts resort to the death penalty.[16] Alternatively, the ICC could end up prosecuting individuals who would otherwise be permitted to escape justice on account of a heavily compromised Libyan judiciary.  In this scenario, the gap between punishment regimes would have to be appreciated in light of the knowledge that some punishment may be preferable to no punishment at all.

As more and more States ratify and accede to abolitionist treaties the space between the domestic and international regimes of punishment will be reduced.  However, given that none of the ICC’s six situation states have abolished the death penalty,[17] the problem is likely to persist for some time, and to be especially significant in situations involving non-States Parties who are subject to ICC jurisdiction by virtue of a Security Council referral.

Balancing the interests of affected States against those of the international community is a difficult task, necessary to the effective operation of international criminal law.  The Sudan and Libya referrals may result in concurrently operating criminal penalty regimes which are damagingly inconsistent, and viewed as exceptionally senseless by those most directly affected by the crimes.  However, it may be hoped that the damage of this inconsistency will be mitigated by a recognition of the persuasively abolitionist effect the ICC’s decision to limit punishment for the most serious crimes of concern to all of humanity might have on retentionist states.

[2]S/RES/1970 (2011).Signalling President Gadhafi’s waning support, Ibrahim Dabbashi, Libya’s Deputy Envoy to the UN, expressed vigorous support for the Resolution, calling the Tripoli regime fascist. (C/10187/Rev.1**).

[3] S/RES/1593 (2005)

[4] The value of this assertion in relation to the Libyan situation is debatable and, for lack of space, cannot be addressed here.

[5] Both states opposed the December 2010 UN General Assembly Resolution on the Moratorium on the Use of the Death Penalty.  Indeed, none of the ICC’s ‘situation’ states voted in favour of the Moratorium, Uganda voting against it, and DRC, CAR, and Kenya abstaining.

(see: http://www.un.org/News/Press/docs//2010/ga11041.doc.htm).

[6]Rome Statute, Art 77(1).

[7]Ibid, Art 106(1).

[8]Ibid, Preamble, paras.4,9, and at Arts.I, 5(1).

[9] Find Ambassador Bakuramutsa’s comments at: UN Doc S/PV/3453 (http://www.undemocracy.com/securitycouncil/meeting_3453)

[10]Ibid.

[11]Ibid.

[12]Ibid.

[13]The Report of the Secretary-General proposal that “the International Tribunal should not be empowered to impose the death penalty” (UN Doc S/25704 at para 112) was accepted unanimously by the Security Council.

[14]Payam Akhavan, “The Politics and Pragmatism of Punishment,” (1996) 90 American Journal of International Law, 501, at 501.

[15] (http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries).

[16]The drafters of the Rome Statute took great pains to ensure that the Statute would operate without prejudice to the application of national penalties and laws. Though Libya is not a State Party, Article 80 of the Rome Statute, would still appear to apply.

[17]Kenya is abolitionist in practice, but retains the punishment on its books (http://www.amnesty.org/en/death-penalty/numbers).

The Right to be Present: Fundamental but not Absolute

Those standing trial in front of the ICTY have the statutory right to be present at their own trials (art. 21(4)(d) ICTY Statute). Moreover, the accused is entitled to adequate time to prepare for his trial (art. 21(4)(b)). While the right to be present at one’s own trial is a fundamental one, Judge Kwon remarked on Tuesday, it is not absolute. Indeed the Human Rights Committee (see Monguya Mbenge v. Democratic Republic of the Congo, Communication No. 16/1977) confirms that one may, when voluntary and unequivocal, waive the right to be present. Karadzic had notice of the beginning of the trial and decided not to show up.

One can, however, infer his seriousness to defend himself in front of the tribunal rather than boycott the court as he has assembled a legal team of 30 international lawyers to prepare for his defence. Taking into account the amount of evidence involved in the case and the necessary time to prepare a full defence, the court’s Tuesday finding that Karadzic unequivocally waived his right to be present is questionable. Nevertheless, Judge Kwon’s finding of an unequivocal waiver leads to important consequences with regards to trials in absentia and assigned counsel.

The Court’s Problematic Options

Amongst 5 options outlined by Judge Kwon at the end of proceedings on Tuesday, the likely possibilities that could occur in the continued absence of Karadzic are: a) continue the trial without Karadzic and without any defence counsel; b) appoint counsel on behalf of Karadzic; or c) appoint an amicus curiae. There are major problems that arise with at least two of these options.

Continuing the trial without Karadzic or any assigned counsel would make the trial patently unfair, regardless of whether he waived his right or not. Confidence could be lost in the administration of the ICTY. The adversarial process, a legitimizing aspect of the court, would fall by the wayside.

Assigning counsel is also problematic. Karadzic could, as in the Šešelj case, challenge the appointment leading to further delays. In addition, unless the court adjourned for some time, counsel would not have sufficient time to prepare an adequate defence.

The ICTY is heavily criticized for overstepping the boundaries imposed by its statute and Rules of Procedure and Evidence. International bodies are limited to what is expressly bestowed onto them. Kevin Jon Heller, a Karadzic legal adviser, believes that the court is not authorized to hold the trial in Karadzic’s absence, even if counsel has been assigned to protect his interests. The ICTY Rules of Procedure, he argues, do not have the same addition that the ICTR made (Rule 82 bis) allowing for trials in absentia.

A Different Possibility

Rather than risking the fairness of the trial by assigning an ill-prepared lawyer or by proceeding without any defence, the court could hold a proceeding to determine whether Karadzic is in contempt of court. The high profile nature of this case is further incentive for the court to ensure the appearance of fairness and justice, which would engender respect for international criminal tribunals in general. A finding of contempt would punish him and potentially compel him to appear.

Proceeding at trial without the accused should only be a last resort, if used at all. The court should explore an avenue that prevents Karadzic from taking advantage of the court and its rules, while still ensuring that he benefits from a fair trial. Upholding the principles of legality and the rule of law further legitimizes the international criminal order. However, international criminal tribunals need coherent and transparent rules of procedure in order for trials, such as Karadzic’s, to be deemed fair.

You can follow the Karadzic trial this Monday, November 2^nd at 9 A.M. G.M.T. + 1 by watching the ICTY’s live feed: www.icty.org. Thanks to Gerard Kennedy, student at Queen’s University Faculty of Law, for his insight.