By Alex Whiting
As I wrote yesterday, 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.
As a commander of the Al-Saiqa Brigade in the so-called Libyan National Army (LNA), 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.
The case has potential implications for the United States and for other states engaged with Libya, because Khalifa Haftar, the leader of the LNA, is a dual U.S. – Libyan citizen. Shortly after the announcement of the arrest warrant, the U.S., France and the United Kingdom issued an unusual joint statement praising the LNA for suspending Al-Werfalli and pledging to investigate him fully. The three countries called on the LNA “to ensure that the investigation is carried out fully and fairly; and those responsible for the unlawful killings are held to account.”
There are at least two possible ways to read this joint statement.
The first is that the U.S. (a non-State Party of the ICC) is joining two ICC State Parties to support and encourage a positive and pro-active response to the ICC warrant.
To date, the Trump administration has not articulated a clear policy with regard to the ICC, though for a time there was apparently a draft order circulating to largely defund UN activities, including the ICC, even though the U.S. presently provides no funds to the Court.
Further, the news that Secretary of State Rex Tillerson plans to abolish the Office of Global Justice in the State Department (see Just Security commentary here and here) suggests, perhaps, a less than robust commitment to international criminal accountability.
With this context, and the Trump administration’s overall skeptical, if not hostile, approach to international institutions, it would no doubt be a mistake to read too much of a positive ICC spin into the joint statement, but it just might suggest that the Trump administration could take an approach to the ICC similar the Obama administration’s.
This would mean support for the Court consistent with U.S. law (the American Service-members’ Protection Act directly limits certain forms of support for or cooperation with the ICC), as long as it is in the national interest.
The more plausible read of the joint statement is that the U.S., France and the U.K. are looking for a way to avoid the ICC.
If the LNA did in fact pursue a proper investigation and prosecution of Al-Werfalli for the crimes for which he is charged, an unlikely proposition to be sure, it could render him ineligible to be prosecuted at all by the ICC.
In fact, that’s exactly how the ICC is supposed to work.
The Court is one of last-resort and is designed to encourage national jurisdictions to prosecute cases themselves, with resort to the ICC only if the national jurisdiction does not prosecute, or engages in a sham or inadequate prosecution.
The issue here is a bit complicated because normally a case becomes “inadmissible” before the ICC (meaning it cannot be prosecuted) if a state brings a prosecution of the same person for substantially the same conduct, but there are separate ne bis in idem (double jeopardy) provisions in the Rome Statute (see Articles 17(1)(c) and 20(3)) that appear to apply more broadly, and prohibit the Court from proceeding against a person who has already been prosecuted for the same crimes, even if those prosecutions are brought by non-state actors.
But the Al-Werfalli case becomes more complicated for the U.S. and other states if General Khalifa Haftar is implicated in the crimes.
If it can be established that Al-Werfalli was under the effective command and control of Haftar, that Haftar’s “failure to exercise control properly over” Al-Werfalli contributed to the commission of the crimes, and that Haftar was aware of the crimes and failed to prevent or punish them, then Haftar himself could be criminally liable under Article 28 of the Rome Statute.
This possibility might make the LNA reluctant to hand Al-Werfalli over to the ICC because of the risk that Al-Werfalli himself would turn on Haftar (presumably if Al-Werfalli is turned over, it will only be if Haftar is confident that Al-Werfalli will not flip).
There is also some indication from public source reporting (here and here) that evidence exists that Haftar ordered the executions for which Al-Werfalli is charged. If that’s the case, then he could be charged at the ICC for that direct role (under Article 25 of the Rome Statute), or he could be charged in the United States under the War Crimes Act, because of his U.S. citizenship.
Finally, Haftar’s potential liability for the war crimes alleged by the ICC should give states supporting him, overtly or covertly, pause. There have been indications that the U.S., the United Arab Emirates, Egypt and Saudi Arabia support, in various ways, Haftar and the LNA. Now that these states are on notice of this conduct, their officials risk criminal liability for aiding and abetting crimes if they continue to support the LNA and the LNA commits further war crimes.
U.S. officials should consider whether future assistance to the LNA could constitute aiding and abetting violations of the War Crimes Act. Aiding and abetting under U.S. law (see 18 U.S.C. § 2) typically requires proof of an intent to facilitate the crime in question, though there is support for the proposition that knowledge that the aid would further the crime is sufficient when that crime is serious in nature (which would certainly include war crimes).
Although there is some debate on the subject, the ICC statute appears to provide for aiding and abetting liability only when assistance is provided with an intent to assist the crimes (Article 25(3)(c) says “[f]or the purpose of facilitating the commission of such a crime …”). In customary international law, the test for aiding and abetting has a lower intent or mens rea requirement – knowledge that the assistance would aid the crimes or a substantially significant likelihood that it would is sufficient – but the assistance has to amount to a “substantial contribution.”
Whatever the applicable test, states that are providing assistance to the LNA will want to assess their risk of exposure to future criminal liability if LNA fighters commit further crimes.
In sum, although the new ICC arrest warrant is narrow, charging just one mid-level commander with a series of very grave crimes, its implications for the LNA, Libya, and other state actors are significant.
Alex Whiting served for ten years as a federal prosecutor at the Department of Justice and the U.S. Attorney’s office in Boston, and eight years as an international criminal prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague.