Libya Challenges the Admissibility of the Cases Against Gaddafi and Al-Senussi

by Kevin Jon Heller

Libya has now brought a formal admissibility challenge under Article 19 of the Rome Statute.  The motion, written by Philippe Sands, Payam Akhavan, and Michelle Butler, is a brilliant piece of work and stands a good chance of success.  I’ll have much to say about the motion in the next few days, but in this post I want to focus on two aspects of it that I think work at cross-purposes: (1) its insistence that the absence of due process in a national proceeding does not make a case admissible before the ICC; and (2) its quite savage attack on the integrity of the Office of Public Counsel for the Defence.

To begin with, I was surprised — and more than a little pleased — to see that the motion basically argues that Article 17 of the Rome Statute does not make the absence of national due process a ground for admissibility:

99. As noted by highly qualified publicists, “there is a danger that the provisions of Article 17 will become a tool for overly harsh assessments of the judicial machinery in developing countries.” It is not the function of the ICC to hold Libya’s national legal system against an exacting and elaborate standard beyond that basically required for a fair trial.  As other distinguished commentators (including drafters of the Rome Statute) have noted generally in regard to due process considerations,

“Arguments have been made that the Court is thus given a general role in monitoring the human rights standards of domestic authorities. The better view is that delay and lack of independence are relevant only in so far as either of them indicates an intention to shield the person concerned from justice. There does not appear to be anything in the Statute to make the Court responsible for the protection of the human rights of the accused in the national enforcement of international criminal law; the principle of complementarity addresses the particular aspects of the proceedings which are referred to in Article 17, whereas more general human rights considerations about the conduct of national prosecutions are more properly addressed by human rights treaties and bodies.”

As I have explained at length elsewhere, this is absolutely correct  The delegates to the Rome Conference specifically drafted Article 17 of the Rome Statute to prevent the Court from admitting a case solely on the ground that the national prosecution would be unfair.  Indeed, they rejected a proposed version of Article 17 (by Italy) that would have permitted the Court to consider whether “the said investigations or proceedings… were or are conducted with full respect for the fundamental rights of the accused.”  We can certainly lament that limitation, and I criticize it in my article.  But the proper remedy is to amend the Rome Statute, not for the Pre-Trial Chamber to rewrite Article 17 sub silentio.

The authors of the motion are clearly aware that it is not popular to insist that due process is irrelevant to admissibility.  I’m sure that’s why the motion spends a significant number of pages (pp. 29-35) extolling the fairness of the Libyan criminal-justice system. I certainly understand that choice — it is difficult to openly defend a state’s right to hold unfair trials, even if that position is legally correct.  But I also think the motion risks opening a Pandora’s box that the Libyan government doesn’t really want opened.  I don’t know many people who work in ICL who actually believe that Libya intends to give Saif and Al-Senussi trials that comport with international standards of due process, regardless of its protestations to the contrary.  And I don’t think the formal adequacy of Libya’s criminal-justice system, which is all that the motion emphasizes, counteracts that skepticism.  Sadly, as all criminal lawyers know, the statutory and constitutional right to a fair trial does not guarantee that a defendant will actually receive a fair trial.  Will Libya be different?  I doubt it, and I’m confident that the ICC’s judges will doubt it, as well.  After all, it wasn’t so long ago that Iraq guaranteed it would give Saddam Hussein a fair trial and defended that guarantee by pointing to the (ostensible) formal adequacy of the law and procedure governing the Iraqi High Tribunal.  And we all know how that trial turned out.

In the same vein, I think the motion makes a very serious mistake when it so savagely attacks the OPCD’s report on Saif’s conditions of confinement.  Here are the relevant paragraphs (emphasis mine):

28. On 2 and 5 March 2012, the OPCD filed confidential reports concerning this visit. In these reports the OPCD made various unwarranted allegations against the Libyan Government in respect of the alleged poor treatment of Mr Gaddafi and its purported intention to charge him only with offences relating to camel licensing and the cleanliness of fish farms owned by Mr Gaddafi. As these allegations were made without any attempt to check their accuracy with the Libyan Government, and as they were filed with the Court confidentially, the Libyan Government did not become aware of them until public and redacted versions of the reports were filed on 4 and 10 April respectively.

38. As the events outlined above demonstrate, this admissibility challenge has been prepared by a State which has only recently emerged from armed conflict, mass-atrocities, and a complete change of government after a period of forty-two years of dictatorship. It is particularly unfortunate that it brings its Article 19 application in the context of unverified and unwarranted allegations of bad faith made by the OPCD, an organ of the Court. The Libyan Government trusts that the Pre-Trial Chamber will not allow such baseless allegations to prejudice Libya’s Article 19 application. Stigmatizing a Government on the basis of unfair and untrue allegations when it is both willing and able to eradicate impunity would seriously undermine the principle of complementarity upon which the Court is founded.

94. The inappropriate and unsubstantiated allegations by the OPCD against Libya in this regard have been prejudicial and contradictory. On the one hand.there are allegations that Mr. Gaddafi stands accused of trivial regulatory offences relating to the licensing of camels and fish farms, suggesting that he is being shielded from justice. On the other hand, there are allegations of physical abuse and a rushed trial in violation of intemational standards of due process. These allegations are irresponsible and patently false. No evidence has been tendered to support them. Amidst the chaos prevailing in the immediate aftermath of the Muammar Gaddafi regime’s overthrow, the NTC and local authorities in Zintan have gone to extraordinary lengths to protect Mr. Gaddafi against vigilante violence, given the strong feelings among some sections of the population regarding his alleged role in mass-atrocities.

Regardless of whether the allegations are correct, these paragraphs never should have been included in the motion.  The paragraphs do nothing to advance the admissibility challenge (because, as the motion itself points out, the absence of due process is irrelevant) and everything to undermine it.  Who should an outside observer believe concerning Saif’s treatment, the OPCD or the Libyan government?  The OPCD is an official organ of the Court whose primary responsibility is “[r]epresenting and protecting the rights of the defence during the initial stages of an investigation.”  It has no apparent reason to lie about the conditions of Saif’s confinement, and the motion identifies none.  By contrast, the Libyan government has every reason to lie about those conditions — not least because it is currently trying to convince the ICC that it should be allowed to prosecute Saif itself.  As for the OPCD’s allegations being “unsubstantiated,” whose fault is that?  Certainly not the OPCD’s, which wanted to conduct a much more thorough investigation.  There is one reason and one reason only that it was not able to do so: the Libyan government wouldn’t let it.  And now the Libyan government wants the cursory nature of the OPCD’s investigation to count against its conclusions?  That’s hardly convincing.

It is also important to note that there is reason to be skeptical of the Libyan government’s insistence that it is not mistreating Saif.  After all, not too long ago the government officials were anti-Gaddafi rebels who, according to the International Commission of Inquiry on Libya, were more than willing to commit international crimes in service of their cause.  Here is the third paragraph from the summary section of the Commission of Inquiry’s most recent report:

The Commission further concluded that the thuwar (anti-Qadhafi forces) committed serious violations, including war crimes and breaches of international human rights law, the latter continuing at the time of the present report. The Commission found these violations to include unlawful killing, arbitrary arrest, torture, enforced disappearance, indiscriminate attacks, and pillage. It found in particular that the thuwar are targeting the Tawergha and other communities.

The bottom line: in my view, the motion makes a serious tactical mistake when it attacks the integrity of the OPCD, especially in the context of an attempt to convince the Pre-Trial Chamber to hold Saif and Al-Senussi’s cases inadmissible.  We are all Legal Realists now: although the absence of due process is not legally relevant to Libya’s admissibility challenge, that absence cannot help but weigh on the minds of the judges when considering the challenge.  I think there is a serious risk that the judges will conclude that a government that is willing to make inflammatory allegations against an organ of the Court is hardly the kind of government that deserves the benefit of the doubt when it comes to difficult factual determinations — such as whether a national investigation is really “genuine.”

9 Responses

  1. Hi Kevin,

    Thanks for this post.   I looked at your paper in Criminal Law Forum, and I was struck by the lack of reference to VCLT art. 31(3)(c), the provision that some refer to as systemic integration.  As you know, under this provision, other relevant rules of international law are considered to be part of the context of the treaty, and inform interpretation in this way.  This makes human rights norms of due process relevant to the interpretation of terms such as “genuine” and “justice” in the Rome Statute.  Crucially, art. 31(3)(c) takes priority over “subsidiary means” of interpretation, such as the traveaux, in art. 32.

    I think that your discussion of the drafting history is immensely helpful, but it also raises the important conceptual question of the relationship between the intent of the drafters and “other relevant rules of international law.”  This is very much on my mind, as I’ve been working on a project that addresses the relationship between ICL and certain other areas of human rights law. (here).  I think we can agree that it’s exciting that the ICC might squarely address the role of article 31(3)(c) in this context.

  2. Ben,

    Thanks for the comment.  I contemplated art. 31(3)(c) when I was writing the article, but I ultimately concluded — and still believe — that it does not affect the analysis.  States may well be obligated by human-rights law to provide fair trials to defendants they prosecute, but I do not see those obligations as “applicable in the relations between the parties” under the Rome Statute.  First, Article 17 regulates the relationship between the ICC and the parties to the Rome Statute; it does not regulate the relationship between the various states parties themselves.  Second, even if it did regulate the relationship between states, the plain meaning of Article 17 indicates that the drafters of the Rome Statute wanted to limit unwillingness and inability to situations that make it more difficult to convict the defendant; the travaux simply reinforce that plain meaning.  By treaty, therefore, the drafters of the Rome Statute have made due process considerations inapplicable in whatever relationship exists between the states parties.  Third, what rule of international law says that states must not only provide fair trials to defendants they prosecute, but must also respect due process in their relations with each other?  Such a rule would invalidate every extradition treaty ever negotiated that adheres to the rule of non-inquiry.  I think states would be surprised by that result!

    Finally, as an aside, my basic view is that the VCLT is completely hermeneutically incoherent.  Good neopragmatist that I am, I reject any theory of interpretation that would allow context — much less some kind of amorphous systemic context — to trump the intention of the drafters of a treaty, particularly where, as here, that intent is clear.  The Rome Statute is a treaty; the drafters of the treaty specifically rejected the idea that the absence of national due process makes a case admissible.  To me, that is the end of the story.

    Your project looks very interesting!

  3. Thanks for the response.  I like all three of your points, because I think they raise important issues about the scope of the norms one brings to the table in interpretation. Each got me thinking.

    Your first point (art. 17 does not regulate the relations between parties) raises the interesting question of how art. 31(3)(c) is relevant to the interpretation of power-conferring rules in the constituent instruments of international organizations. Rules of international law are useful under art. 31(3)(c), your first point suggests, if they govern the same type of relationship as the provision to be interpreted.  Thus, the commitments that states make to each other in the Rome Statute may be susceptible to interpretation using human rights law under 31(3)(c), but the relationship of states to the ICC is not.  This would suggest that the powers of international organizations cannot be interpreted using other “relevant rules of international law,” unless those other relevant rules also govern the powers of IOs, specifically or generally. This is very interesting, and points to one of the problems associated with the fact that the VCLT was not drafted primarily with IO constitutions in mind.

    I would suggest, however, that the phrase “applicable between the parties” qualifies the term “relevant rules.”  It seeks to limit this category to rules “applicable” (which may or may not mean “binding”) to all (or some) of the parties creating a treaty.  (WTO jurisprudence has some interesting debates on these points.) But once we decide that human rights norms are indeed “applicable” to the relations among the parties to the Rome Statute, then I would suggest that all provisions of the statute should be interpreted in light of these rules. I would make no distinction between power-conferring rules and reciprocal rules of conduct in this regard.

    The second point you raise implicates the relationship among the trinity of elements in VCLT art. 31(1) (plain meaning, context, and O&P).  If the plain meaning is clear, can you nonetheless modify your interpretation by reference to “context,” including art. 31(3)? Article 31 does not suggest a hierarchy. (Again, debates in the WTO on this.) And it would seem that, in the case of art. 31(3)(a), subsequent agreement should clearly be allowed to modify even obvious plain meaning.  So why not art. 31(3)(c)?  

    At this point, all we have left are normative arguments as to the value of various interpretive methods.  Private law analogies would treat (a) and (c) differently, insofar as (a) refers only to later-in-time agreements, like the last-in-time rule.  On the other hand, public law analogies, such as the general idea that states, as public entities, must take seriously their legal commitments, might point toward giving greater weight to “systemic” norms in interpretation.

    I really like your third point for two reasons. I think, by invoking extradition, you raise an important data point that people like myself often fail to consider in this discussion.  Second, I think, in a Kiobel-like manner, it goes directly to the question of the proper level of abstraction when invoking human rights norms to interpret other rules.  But are the relations between states and the ICC like extradition relationships among states? We can always tell alternate stories, and grab from different parts of the treaty (as “context”).  Extradition agreements, for example, likely do not contain any provision similar to Rome Statute art. 21(3), nor reference the purposes and principles of the UN Charter.

    Your aside on the VCLT touches the most important questions in this discussion, and asks to what extent the parties are masters of their treaty.  The two of us would likely come out on the same side had the parties drafted an article that stated “no considerations of due process shall enter into the admissibility discussion.”  (Maybe one day such a provision will violate jus cogens?) But should they be required to say that?  What are the costs of an ultra-clear-statement rule?

    Thanks for this discussion. The briefs here give the ICC substantial room to avoid these questions. But it will be very interesting to see what the court will do.

  4. Ben,

    I don’t think we disagree about much.  Just one quick thought on the art. 31(3)(c) issue.  I think there is a very important difference between 31(3)(a) and 31(3)(c): subsequent agreements are just that, subsequent, whereas pre-existing rules of IHRL are just that, pre-existing.  I think art. 31(3)(c) has to be read to adopt something like the traditional common-law later-in-time principle.  The drafters of Article 17 excluded due process from admissibility even though they were fully aware that they were obligated as states to respect due process in their national proceedings.  So how can those earlier-in-time obligations trump the later-in-time exclusion of due process?  That seems deeply problematic to me.

  5. Thanks for the explanation of the admissibility challenge, Kevin. If indeed the Court agrees with Libya, and Saif is convicted and sentenced to death after unfair proceedings, I fear that the general public will blame the ICC for allowing it to happen. It would take skilled PR efforts on the Court’s part to extinguish such perceptions. Then again, I’m not convinced the Libyan government is capable of securing Saif’s transfer from the Zintan authorities, which would render the point moot. 

  6. Response…
    I think that Article 21(1)(b) and (3) (“application and interpretation … must be consistent with internationally recognized human rights”) provides a basis for a more expansive policy-serving inquiry.  Moreover, the Court should not be complicit in human rights deprivations any more than a state — e.g., under the “real risk” test or the “substantial” risk test regarding return or rendering of individuals.  Further, there are many inroads on the so-called non-inquiry rule (which reminds me of Sgt. Schultz in Hoggan’s Heroes, who laughingly said “I see nothing”). Certainly state members of the U.N. have an unavoidable and overriding oblligation to take action to assure respect for and observance of human rights under UN arts. 55(c), 56, 103; but, yes, the ICC is a separate juridic person (but the individuals can have private duties under human rights law, e.g., ICCPR, preamble and art. 5(1)).
    It also seems, al la the rationale in the Nuremberg’s IMT opinion, that no state could lawfully delegate to the ICC a power or authority that the state did not possess — e.g., to be complicit in human rights deprivations where there is a “real risk” of such.
    Thus, this matter may be a bit more complex.

  7. I’m curious about an important point raised by Dan: Saif remains in the custody of the former rebels in Zintan, not the NTC. Further, the rebels in Zintan have consistently reiterated that they would like to see Saif tried there and not in Tripoli. Yet the admissibility challenge is from the government of Libya – ie. the NTC. Should the Pre-Trial Chamber take this into consideration when ruling on the admissibility of the case? 

  8. Mark,

    They absolutely should, because it is clearly relevant to the ability of Libya to obtain the accused, a requirement of Article 17.  There is obviously some degree of cooperation between the NTC and the Zintan rebels, because Libyan government officials were present during the OPCD/Registry meeting with Saif in Zintan.  Whether that means the rebels would give Saif to the NTC is, of course, another question…

  9. Thanks Kevin. That’s what I imagined. Very odd situation there. Only person who can give access to Saif is said to be the Libyan general prosecutor. But not even he has been able to persuade the Zintan rebels to send Saif to Tripoli. The Registry’s report also noted something I also hadn’t heard before and is very pertinent here: there are two Zintani rebel factions and only one is on good terms with the NTC. The other has Saif. 

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