The ICC’s New Libya Case: Extraterritorial Evidence for an Extraterritorial Court

The International Criminal Court (ICC) announced last week that it had issued a new arrest warrant for Mahmoud Mustafa Busayf Al-Werfalli, a militia leader in Libya. Al-Werfalli is alleged to have directed or participated in a series of seven executions of 33 prisoners in total between June 2016 and July 2017, constituting the war crime of murder.

Al-Werfalli is a commander in the Al-Saiqa Brigade in the so-called Libyan National Army (LNA), which is under the overall command of General Khalifa Haftar, a powerful and polarizing figure in Libya. Despite its name, the LNA is not a governmental force under the command of the Government of National Accord (GNA), the internationally recognized government of Libya. Rather, it is a non-state military force that controls the eastern part of the country and is comprised of “army units, ex-revolutionary groups and tribal militias,” according to the arrest warrant.

There has been considerable commentary about the ICC’s reliance on social media to bring this case. All of the executions were video-recorded and posted either to Facebook or other social media sites, according to the arrest warrant. The last case brought by the Office of the Prosecutor, against Ahmad Al Faqi Al Mahdi in Mali for the war crime of intentionally directing attacks against religious and historic buildings, was also heavily reliant on video evidence. In this respect, these cases show both the challenges and opportunities of ICC investigations: The Court depends on state cooperation to access information, but state control over information is declining.

ICC investigators and prosecutors have few investigative tools in their toolkit. They have no independent authority to compel the production of evidence through, for example, subpoenas or search warrants. Instead, they are largely dependent on state cooperation to collect evidence. Even if investigators simply want to travel to a state to conduct voluntary interviews, they must obtain the permission of the state to enter, and if they want to use any compulsory means to collect evidence, they must do it through state mechanisms.

Although the 124 states that have chosen to join the ICC, as well as the two states (Sudan and Libya) that have been referred to the Court by the UN Security Council, are legally required by the Rome Statute to cooperate with ICC investigations, the ability of the ICC to enforce this obligation is limited. The judges can refer a non-cooperating state to the Assembly of States Parties (or to the UN Security Council in the case of a referral), but are then dependent on those bodies to take action. And in fact, every time there has been a non-cooperation referral, neither organ has taken any measures against the recalcitrant state. Last month, the Pre-Trial Chamber elected not to refer South Africa’s failure to cooperate with the ICC to the Assembly of States Parties in part because of the futility of such a referral:  

In addition, the Chamber observes that States Parties have been referred to both the Assembly of States Parties and the United Nations Security Council in six instances in relation to failures to arrest and surrender Omar Al-Bashir. However, the past 24 meetings of the Security Council of the United Nations following the adoption of Resolution 1593 (2005), including meetings held on the occasion of the biannual reports made by the Prosecutor to the Security Council of the United Nations, have not resulted in measures against States Parties that have failed to comply with their obligations to cooperate with the Court, despite proposals from different States to develop a follow-up mechanism concerning the referral of States to the Security Council by the Court. (Para. 138).

Compounding the challenge, even when states wish to cooperate with an ICC investigation, they may not have the law enforcement capacity, or access to relevant territory, to provide much help. In Libya, for example, the central government does not have control over the entire territory of the country, and security concerns prevent ICC investigators from conducting many investigative measures inside the country. For these reasons, if a state is not supportive of an ICC investigation or does not have the capacity to facilitate it, investigators can be effectively blocked from obtaining much evidence from within that state.

The good news, however, is that more and more, evidence can be captured in real time and preserved with technology, and it can easily cross borders. The internet is a powerful tool for communication, recruitment, and propaganda, and groups that commit atrocity crimes often seek to use the internet for their own ends, exposing themselves to investigators. In this latest ICC case against Al-Werfalli, for example, the evidence suggests that the executions were video-recorded and posted to social media to maximize their impact on the local population.

Moreover, the proliferation of smart phones with cameras and connectivity have allowed individuals all over the world to record and document acts of atrocity and upload them to the internet. Organizations like Witness (co-founded by musician Peter Gabriel following the video recording of the Rodney King beating in Los Angeles in 1991) provide training and guidance in documenting crimes through video, and the International Bar Association has created an app to allow for the authentication and secure transfer of videos. Apps like these may never replace YouTube, Facebook or other social media sites as locations where people can quickly upload video evidence of crimes, and additional technical solutions will likely need to be devised to ensure the security and authenticity of such video evidence. But it is likely that we will soon reach the point when videos will be self-authenticating in court, with the meta-data establishing the time and location the video was taken. Video evidence has been prominent in the investigations of crimes in Libya and Syria, and has the potential to revolutionize war crime investigations in the future. Organizations are becoming more sophisticated at combining video evidence and other open-source materials to investigate crimes remotely. Bellingcat, an online investigative organization, was able to investigate the downing of MH-17, establishing many of the circumstances of the attack and the forces responsible, all through open source inquiry and analysis.

Further, evidence crosses borders in the form of population movements. In both Libya and Syria, for example, there has been a massive exodus of refugees who become accessible to ICC investigators as soon as they leave their country of departure. These individuals can be screened to assess who might have relevant information for investigators (and what video or documentary evidence they might possess). Although much of the evidence obtained from videos taken and uploaded by individuals, or from refugees fleeing the country, will establish that crimes were committed, it can also offer valuable clues about who directly perpetrated the crimes and who might have ordered or planned them. It is noteworthy, however, that both the Al Mahdi and the Al-Werfalli cases charge direct perpetrators as opposed to more senior commanders, though the ICC Prosecutor endorses the charging of notorious perpetrators who have committed grave acts, even if they are not in the senior leadership, and there remains the possibility that ICC investigators will work their way up the chain of command.

Finally, evidence held by state or non-state organs is less secure and more vulnerable to hacks or leaks, allowing investigators who get access to this information an inside view on the inner workings of an organization and its decision-making process. There may be complex questions to resolve about the admissibility of such evidence in court, but at a minimum such information can give investigators valuable leads to develop other forms of evidence to establish individual responsibility within a criminal organization.

All of these developments provide opportunities for ICC investigators, and help counter the limitations resulting from their dependence on state cooperation for evidence. However, these means of obtaining evidence present challenges of their own. First, the volume of evidence that can emerge from these conflicts – in the form of video, other open source materials and refugees – can be daunting and difficult to manage. With its extremely limited resources, the ICC may have difficulty sorting through the masses of information to identify what is useful and valuable. There continue to be opportunities here for NGOs to serve an intermediary role in processing and storing the evidence that’s pouring out of conflict zones.

Second, reliance on these means of obtaining evidence means that the ICC becomes more a court of opportunity rather than one of strategy. Rather than identifying the most serious crimes to investigate or the most likely senior perpetrators, the Court becomes reactive to the evidence that becomes available to it. This is troubling, but it is also the reality of the circumstances the ICC finds itself in, and a result of the limited investigative powers that have been provided to it by the states. Further, as a Court of “opportunity,” the ICC will likely pursue highly visible crimes, which means that it could still have a significant impact.

Third, while the flow of information across borders creates real opportunities for investigators, it will often not be the complete solution for a successful ICC prosecution. Particularly if investigators seek to charge more senior commanders, they will likely continue to be reliant on obtaining at least some evidence from within the country. Moreover, even if the ICC succeeds in bringing a case, there remains the challenge of getting the accused to The Hague. If a country is unwilling or unable to cooperate with the court’s investigation, it may likewise impede the surrender of any accused person to the Court. Not a single charged government official from Sudan has appeared in The Hague, and of the five persons charged to date in Libya, not one has been surrendered, though there continues to be hope that this will change.

The ICC remains a new institution that will continue to evolve. At present, it is looking for ways to take advantage of opportunities to succeed within its limited mandate, and as an extraterritorial court, it is increasingly finding ways to rely on extraterritorial evidence. In some ways, in an effort to escape the constraints placed on it by states, it is turning towards technology, like the internet, that has the capacity to challenge state authority. Will these efforts be enough for the Court to succeed? State limitations remain enduring, and it is likely that in time, states will need to consider whether they are willing to fully empower the Court – with stronger investigative tools, political backing, and resources – to do the job it aspires to do.

Image: UN Photo/Kim Haughton

 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).