OTP Responds to Libya’s Admissibility Challenge

The Office of the Prosecutor has filed its response to Libya’s challenge to the admissibility of the cases against Saif Gaddafi and Abdullah al-Senussi.  There are a number of interesting aspects to the response.  First, it says nothing about the case of al-Senussi.  That’s a curious omission, given that the response specifically points out with regard to Saif (para. 41) that he remains in the custody of the Zintan rebels, making it possible that Libya is “unable” to prosecute him.  If there is an open question about Libya’s ability to prosecute Saif, there is a gaping question about its ability to prosecute al-Senussi, who remains in Mauritanian custody.

Second, the OTP clearly affirms in its response that states can prosecute international crimes as ordinary crimes without necessarily running afoul of the principle of complementarity.  As it says in para. 23:

There is no requirement that the crimes charged in the national proceedings have the same “label” as the ones before this Court. The Statute does not set out to regulate how States may choose to incorporate crimes within the jurisdiction of the Court into their national legal system. There is no requirement under the Statute, for example, for States to adopt legislation incorporating the crimes listed in Article 6 through 8 into national law.  Therefore, there may be discrepancies in the way a particular act is criminalized under the Rome Statute and under national law.

This is clearly correct, for reasons I discuss in this essay.

Third, and finally, the OTP explains at length why the absence of due process in a national prosecution, though regrettable, does not make a case admissible before the Court.  Here are the relevant paragraphs, which — to my pleasant surprise — rely heavily on my essay on the topic:

28. The Statute requires that the State with jurisdiction must establish a genuine willingness and ability, but it need not also establish that its domestic procedural protections comport with the ICC Statute and Rules of Procedure and Evidence. The Rome Statute was not intended, and ought not to be read as, an international instrument that binds States to adopt particular processes. Indeed, it expressly recognizes and respects the multiplicity of legal systems. Thus, the Court cannot reject an admissibility challenge, despite the willingness and ability of the State and the identity of the case, solely on the ground that attributes of the State’s domestic procedures are not fully consistent with those of other legal systems including the Rome Statute.

29. Both the negotiating history of the Statute and the opinion of commentators support this view. During the negotiations leading to the adoption of the Rome Statute an overarching concern by negotiating States was that a determination of admissibility of a case by the Court not become a judgment on the fairness and efficiency of the national system. The view expressed repeatedly was that the ICC should not function as a court of appeal on national decisions based on alleged domestic deviations from applicable human rights norms.

30. The drafting history of the relevant provisions confirms this conclusion: during the drafting of Article 17, most delegates were concerned with sham or ineffective proceedings and thought that the problem of overly-harsh national proceedings was one that could be taken up with a human rights body, not the ICC.  In particular, one proposal from Italy that would have specifically made the lack of due process a ground for admissibility was rejected since, according to the Coordinator of the Working Group, “many delegations believed that procedural fairness should not be a ground for defining complementarity”. Thus, if the drafters had intended “genuinely” to require States to provide defendants with due process, they could have done so explicitly by including a specific paragraph to that effect, but they explicitly considered the issue and decided not to.

31. The chapeau of Article 17(2) requires the Court to have regard to the “principles of due process recognized by intemational law” when determining “unwillingness” in a particular case, supporting an argument that the State must be willing to provide a trial that respects some basic standards of fairness. However, this chapeau provision must be read in conjunction with the three subparagraphs of article 17(2).  The requirement is cumulative. Accordingly, the Court cannot find a State unwilling on the sole ground that the national proceedings violate due process, but must also find a violation of one of the three subparagraphs.

32. Similarly,    the    language    of    Article    17(2)(c),    pursuant    to    which    a    “lack    of independence or impartiality” in the national proceedings could trigger a finding of unwillingness when it is “inconsistent with the intent to bring the person concerned to justice”, should be read in conjunction with other parts of the provision: a case is admissible under Article 17(2)(c) only if a national proceeding lacks independence or impartiality and is “being conducted in a manner which, in the circumstances, is inconsistent with the intent to bring the person concerned to justice”. The two requirements are conjunctive, meaning that both requirements must be satisfied for a case to be admissible.

All in all, this is a very important response by the OTP.  It doesn’t break new ground, but it significantly clarifies the OTP’s position on the “ordinary crime” and due process issues.