Why the Failure to Provide Saif with Due Process Is Relevant to Libya’s Admissibility Challenge

by Kevin Jon Heller

Of all my writing, my article on the relationship between national due process and the Rome Statute’s principle of complementarity is almost certainly the most unpopular. (Except in the OTP.)  My thesis is a simple one: the failure of a national investigation or prosecution to live up to international standards of due process does not make a case admissible before the ICC.  Indeed, the drafters of the Rome Statute specifically 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.”  States simply did not want the ICC to function as a supranational court of human rights, imposing its own practices and procedures on national criminal-justice systems.  Ensuring that national systems lived up to international standards, they believed, was the responsibility of human-rights bodies like the Human Rights Council, not the Court’s judges.

I remain convinced that my thesis is correct.  Scholars have tried to get around it, normally by arguing that Article 17(2)’s reference to “the principles of due process recognized by international law” undermines it or that Article 17(2)(c)’s expression “bring the person concerned to justice” includes a due process requirement.  I deal with both arguments in the article.  The first takes the language in question out of context, because all of the grounds for holding a case inadmissible under Article 17(2) require the national deficiency in question to make it more difficult to convict a defendant.  The second argument is acontextual and is contradicted by the clear intent of the drafters.  (It is also a strained “plain reading” of the text.  When the U.S. Marshal in a Western tells his deputies to bring the bad guy to justice, no one thinks he is actually instructing his deputies to ensure that the bad guy has a good lawyer.)

So does that mean a national criminal-justice system’s failure to provide a defendant with due process can never make a case admissible?  I’ve been thinking about the issue again lately, because of Libya’s treatment of Saif Gaddafi.  To be honest, I never imagined that a state would so blatantly deny due process to a suspect wanted by by the ICC.  I expected that states in Libya’s situation would at least pretend to treat the suspect fairly.  And what I have realized is that although my thesis is correct, it ignores a potentially very important situation: where deficiencies in a national investigation or prosecution makes it more difficult to convict a suspect because the state’s own criminal-justice system requires due process.  If a state’s code of criminal procedure authorizes the judiciary to dismiss charges against a suspect on the ground that the executive has denied the suspect rights guaranteed to him under national law, the executive’s failure to provide the suspect with those rights means that the state is, in fact, conducting the proceedings in a manner “inconsistent with an intent to bring the person concerned to justice.”  Intentionally or not, the state is making it more difficult to convict the suspect — and that is all that Article 17(2)(c) requires for the Court to find a case admissible.

Before turning to Libya and the OPCD’s response, let me illustrate the difference between this situation and the situation that Article 17 forecloses.  Imagine the following somewhat-fanciful scenario.  A deadly narco-terrorist group (one that has no connection to al-Qaeda) commits a series of terrible bombings in the United States and Mexico.  Mexico self-refers the situation to the ICC, believing that the group has committed crimes against humanity and that Mexican courts cannot handle the prosecution themselves.  The OTP immediately opens an investigation and brings charges against the leader of the group, a man named Che.  A few months later, the FBI arrests Che in California.  The US promptly invokes Article 17, insisting on its right to prosecute Che for crimes against American nationals on US territory.  When the Attorney General reviews the case, however, he realizes that the evidence against Che is simply not strong enough to convict.  (The FBI badly botched the investigation.)  Fearing the political fallout of a decision not to prosecute, the Attorney General orders the FBI to waterboard Che until he confesses.  Once he does, the US Attorney in the state where the narco-terrorist group’s worst bombing took place indicts Che on hundreds of counts of murder.

In this scenario, could the ICC reject the US’s admissibility challenge on the ground that the FBI tortured Che into confessing, a blatant violation of his right under Article 14(g) of the ICCPR “[n]ot to be compelled to testify against himself or to confess guilt”?  Absolutely not, because the US’s violation of the ICCPR in no way threatens the viability of Che’s prosecution — it does not make him more difficult to convict.  But what about Che’s right under the Fifth Amendment to not be compelled “in any criminal case to be a witness against himself”?  Does the violation of that right, internal to the US criminal-justice system, make the case admissible?

Here — and this is what I overlooked in my article — the answer has to be “yes.”  The Attorney General was not trying to make Che more difficult to convict; quite the contrary, he ordered Che tortured precisely in order to obtain the evidence necessary to convict him.  But because the US has an independent judiciary capable of enforcing a suspect’s constitutional rights, the Attorney General has in fact made it more difficult to convict Che, because he has essentially guaranteed that the federal court assigned Che’s case will suppress the confession as a violation of the privilege against self-incrimination and then dismiss the case for lack of evidence.  The ICC would thus have every right to deem the case admissible, because the US had conducted Che’s investigation — completely unintentionally — “in a manner “inconsistent with an intent to bring the person concerned to justice.”

Now, back to Libya.  Although the OPCD’s response to Libya’s admissibility challenge does not make the argument explicitly — indeed, it repeats many of the unpersuasive criticisms of my article that scholars have offered over the years (see paras. 37-66) — it makes clear that Libya’s treatment of Saif violates not only international law, but also Libyan law.  Indeed, it makes clear that, by continuing to deny Saif even the semblance of due process, the Libyan government is making it almost impossible for the Libyan judiciary to allow the charges to proceed against him:

75. Under domestic law, since Mr. Gaddafi is detained, he should have been provided with this evidence so that he can challenge the legality of his detention [56].

n. 56.  Article 176 of the Criminal Procedure Code, Annex 1. [Redacted], a Libyan lawyer who was sent by the Prosecution authorities on 8 June 2012 to speak to the four detained ICC staff, confirmed that under Libyan law, anyone who is being detained has a right to access the evidence which forms the basis of detention.

88. The Libyan authorities have also indicated that they intend to rely upon intercept evidence. Under Libyan law, the prosecution cannot obtain access to personal communications in the absence of an order from the judge. Failure to obtain such an order renders the evidence inadmissible. Given that it is highly unlikely that a judge would have issued such an order in February and March 2011, it must be presumed that the domestic prosecutors will be precluded from relying upon any such intercepts.

91. Under Libyan law, the use of evidence obtained from torture or coercion can taint the entire case, and result in the release of the defendant. The Libyan authorities assert that if the Accusation/Indictment Judge finds the evidence to be illegally obtained, then they must dismiss the case pursuant to Article 151 of the Criminal Procedure Code. Accordingly, if the domestic judicial authorities apply Libyan law in an independent and impartial manner, then the referral of the case to Libya should result in the dismissal of the case against Mr. Gaddafi due to the existence of tainted evidence. Such a result would be contrary to the preambular objective of the ICC to eliminate impunity.

95. Article 435 of the Libyan Criminal Procedure Code, also explicitly recognizes that statements obtained by coercive or oppressive circumstances should be excluded from criminal proceedings. Moreover, under Libyan law, any suspect interviewed by the Prosecuting authorities has the right to counsel, and to appear before a judge to contest the legality of their continued detention. Failure to comply with these requirements can render the statements inadmissible.

188. … The Libyan authorities have conceded that domestic law requires that detainees “should only be imprisoned in a purpose built facility unless this requirement is waived by the Prosecutor-General in exceptional circumstances (Article 4 of the Prisons Act).” Nonetheless, the Libyan authorities have provided no information as to whether such a waiver was issued, or if so, the nature of the exceptional circumstances justifying its issuance. Libyan law further specifies that such a waiver can only be for a maximum period of 15 days, which has been greatly exceeded in the present case. Libyan law requires the release of any person detained in violation of these provisions.

207. In light of the above difficulties, Mr. Gaddafi has not yet received any legal advice in connection with the domestic proceedings. As confirmed by the Libyan authorities, the case cannot progress to the next stage (confirmation of the charges) until this occurs.

216. The combination of the above factors should – if the Libyan authorities apply their domestic law in an impartial and independent manner – result in a finding that the proceedings thus far have flagrantly violated Mr. Gaddafi’s rights, and have failed to comply with fundamental tenets of the law.

217. Article 304 of the Libyan criminal procedure stipulates that the “breach of any disposition of law concerning essential procedures gives rise to the nullity of the procedure.” Article 305(1) states that “the breach of a provision concerning the composition of the tribunal, his functions, his competence in the qualification of the crime or, in any case, any matter related to public order gives rise to nullity.” Article 309 further provides that the declaration that a certain procedure is null, also affects any consequences of that procedure.

218. The finding by a domestic court that there has been a miscarriage of justice, that the proceedings are a nullity, or that the Prosecution is precluded from resurrecting charges that it had promised Mr. Gaddafi were terminated, would frustrate the ability of the domestic authorities to bring Mr. Gaddafi to ‘justice’, and deny alleged victims their right to the truth.

246. Under Article 105 of the Libyan Criminal Procedure Code, the Prosecuting authorities have an obligation to clearly and accurately inform a detained person of the nature of the charges, and to take minutes of such a meeting. If Mr. Gaddafi is prosecuted in Libya, it is possible that the Court might find that the provision of such promises to an unrepresented defendant — during an unrecorded meeting — constitutes a miscarriage of justice, and therefore terminate the case, or limit its scope to the corruption charges.

272. Article 80 of the Libyan Code of Criminal Procedure explicitly prohibits the investigative judge from seizing documents, which are communicated between counsel and client, and the Libyan authorities failed to provide any written orders or explanation of the legal basis for covertly and deceptively monitoring the visit or seizing Defence documents and property.

The implication of the law cited in these paragraphs is clear: because Libya has an independent judiciary, the government’s flagrant violations of Libya’s Code of Criminal Procedure are making it increasingly unlikely that Saif can be successfully prosecuted in a domestic court.  Unfortunately, the OPCD’s response buries those paragraphs among dozens of others that identify all of the ways in which Libya’s criminal-justice system fails to live up to international standards.  That failure is irrelevant, for all the reasons I explain in my article.  But Libyan government’s failure to live up to the standards of its own criminal-justice system is exceptionally relevant.  Because that failure is reducing the likelihood that Saif can be successfully prosecuted in a Libyan court, the ICC should deem Saif’s case admissible under Article 17.


8 Responses

  1. Kevin,
    An interesting qualification of your earlier thesis (with which I have always agreed I must say). But I wonder whether your new development will work that way. That Libya has an independent judiciary and domestic guarantees of human rights on paper does not mean that it has them/will have them in practice. I am pretty sure that if Saif is ever put on trial before a Libyan court the outcome will have been predetermined; the judge will find a way around Saif’s earlier due process violations, throw in a Latin or Sharia maxim or two, and he will be convicted. There’s no way his case will be thrown out, no matter what the Libyan Code of Criminal Procedure might say – a judge who did that would quickly find himself sharing Saif’s cell.

    So, with that in mind: would you say that now at this stage the ICC should try to predict how a prosecution in Libya would unfold, and then reject Libya’s admissibility challenge by saying that Saif’s due process violations are such that a Libyan court would throw the case out, even though we know for a fact that no Libyan court would ever do such a thing? Isn’t this in essence not only turning the ICC into a court of Libyan domestic law, but also doing so preemptively, before an actual Libyan court did its thing? Shouldn’t one wait for the case to actually get thrown out (and it won’t be) before reasserting the ICC’s jurisdiction?

  2. I must say that I’m a bit disappointed by the position taken by Kevin.
    I had to agree with him on the issue of the irrelevance of the disregard of fair trial standards by a Libya in challenging the admissibility of the case and this is also one of the reasons I dislike the ICC.
    When the Statute was adopted, trial standards in States willing to exercise their jurisdiction were not to become an issue. Otherwise the Statute could not have been marketed easily. The Court was to be satisfied (and its complementarity was not to be triggered) if a member State (but the reasoning applies also upon referral by the UNSC) had set up an ultra – efficient and draconian judicial machinery able to grant mass convictions and sentencing to death penalty. Perhaps the disregard for human rights and fair trial standards will prevent judicial cooperation by third States.  
    Now having accepted the unacceptable and the fact the ICC is not the International Court I would have liked, it is nevertheless difficult for me to follow Kevin in his latest turn because the unacceptable becomes even more unacceptable: violation of human rights and fair trial standards may become relevant under the ICC Statute and for the purpose of the admissibility of a case … if under domestic law there are mechanisms to provide redress in respect of the said violations. If stated differently in terms of unwillingness to prosecute by referring to grave misconduct by the executive aimed at move the justiciary to stay the proceeding (e.g. under the abuse of process doctrine), perhaps the position would have been more acceptable. Even if in my opinion it is time for international jurisdictions to re-think their positions on the mala captus principle and not accountability for violations of human rights imputable the States previously detaining the accused.
    This said, I’m a bit disappointed by the example brought by Kevin on the Narco-terrorist organization and crimes against humanity, because I don’t’ agree with the underlying interpretation of the organizational policy element which would allow to charge even the Hell’s Angels under the Statute (just to use a paradox once heard from Prof. Schabas). I’m further disappointed by the way the position of Libya was used to argue that violations by the executive would make the prosecution more difficult … and accordingly this may be relevant for the admissibility of the case. Libya’s criminal procedure and law is definitively not inspired by English law and if certain evidence may not be relied upon and may be held void this doesn’t mean that the prosecution as such may be stayed as such. Finally he argues that … as the Libyan legal system is not so bad and provide some remedy for the violation … this may be relevant for the admissibility.
    This further step equals to say that the ICC Statutes doesn’t care about fair trial as a matter of admissibility … unless the legal system of the State challenging the admissibility is sufficiently equipped to provide remedies to human rights violations. This could led to new ICC Statute implementation policies enabling States to prevent the ICC complementary jurisdiction … by simply deleting fair trial guarantees.

  3. Marko and Dubito’s points are challenging and very well taken.  But I keep coming back to the following scenario: a rebel group overthrows a dictator wanted by the ICC.  The new government tells the ICC that it (the executive) will investigate the dictator and then, if it determines he is guilty — which of course it will — it plans to shoot him in the back of the head without trial.  That government is in no way trying to shield the dictator from responsibility; quite the contrary.  But such a “political solution” cannot possibly satisfy complementarity, because Article 17 is not about punishment, it’s about accountability.  It presumes that suspects will be brought to justice via a state’s judicial system, even if it doesn’t care whether the trial in question lives up to international standards of due process.  So if a state is not trying to impose punishment through its judicial system, it doesn’t matter that it is not trying to shield the suspect from responsibility; the state is still not genuinely willing to prosecute.

    Does anyone disagree?  Because if we accept that a state runs afoul of Article 17 by trying to impose non-judicial punishment on a suspect, I don’t see how we can avoid the conclusion that a state that is willing to seek judicial punishment but treats the suspect in a manner that undermines its ability to prosecute him successfully also runs afoul of Article 17.  Either way, the state’s actions have the effect, if not the intention, of shielding the suspect from responsibility.

    That said, there is no question — as both Marko and Dubito point out — that this approach means that states with independent judiciaries will be subjected to more scrutiny by the ICC than states without them.  But I’m not sure that’s a winning objection.  Indeed, the asymmetry seems to be a good thing, because it helps balance the scales between states in the West and in the Global South.  As Louise Arbour has pointed out, no Western state will ever run afoul of Article 17’s “ability” requirement, because they do not have — and never will have — complete or partially collapsed judiciaries.  So if Western states are “rewarded” by the ability requirement for their developed judiciaries, why should they not be “penalized” for those developed judiciaries by Article 17’s willingness requirement?  If the sophistication of their legal systems increases the ways in which the executive can undermine (again, intentionally or not) the prosecution of a suspect, why is that a problem?  It may be wrong (from the perspective of complementarity) to hold states to international standards of due process.  But why does that mean it is wrong to hold states to their own standards of due process — developed or undeveloped — if the government’s unwillingness to do so undermines its ability to bring suspects to justice?

  4. Kevin,

    I’ll take a stab at disagreeing with you.  I admit I haven’t read your article.  I’m just going to respond to the arguments you made above.

    I agree with you that 17(2)(a) only asks the question: is the state trying to shield the person from criminal responsibility?  Libya does not seem to be doing that.  17(2)(a) does not seem to have any applicability where the state is simply intent on having a propaganda/show trial with a predetermined outcome.  But 17(2)(c) might.

    I think “justice” in 17(2)(c) has a broader meaning than your argument suggests.  The RS must be interpreted according to the VCLT.  The VCLT, of course, requires an ordinary meaning interpretation of the terms “in their context and in the light of [the treaty’s] object and purpose.”  Legislative history (for example Italy’s rejected proposal) is only relevant to the interpretation if the ordinary meaning (plus context and objects and purposes) is ambiguous or obscure.  And context explicitly includes the entire text of the RS plus the preamble.

    One of the primary objects and purposes of the RS (as stated in the Preamble) is to “guarantee lasting respect for and the enforcement of international justice.”  It is hard to see how the interpretation you have argued for above would contribute to “lasting respect” for international justice.  In fact, it seems more likely to diminish respect for international justice.  That is one reason that I think the 17(2)(c) should probably have a broader meaning.  

    I think Article 67 is probably relevant too.  It is framed in terms of the rights of the accused.  Saif Gaddafi is clearly an accused within the meaning of Article 67 and therefore the Court is supposed to guarantee certain things, including a “fair hearing conducted impartially.”  Interestingly, Article 67 says nothing about limiting these rights to only appearances before the ICC.  Rather it is written such that the ICC has the responsibility to guarantee these rights to all accused.  Arguably, it has an obligation to ensure that Libya respects these rights too.

    Ultimately, I think the Pre-Trial Chamber could (legitimately) use the Preamble, Article 67 (as well as the way justice is used in Arts. 53 and 55) as context, object and purpose that informs the ordinary meaning to be accorded to “justice” in 17(2)(c).  If it goes that route, then justice must mean a kind of justice that will guarantee the rights of the accused and foster lasting respect for international justice.  In other words, it could use it to permit the ICC to proceed with the Saif Gaddafi case if it finds that the Libyan prosecution is a kangaroo court that does not comply with minimum international standards of due process.

    Also, I think we would probably both agree that the first part of 17(2)(c) (whether or not the [state] proceedings are being conducted independently or impartially) is satisfied as there is evidence that the Libyan prosecution is not impartial.

    This is all a bit hurried, so I hope I haven’t made any egregious errors.

  5. Stuart,

    I completely disagree, and I deal with most of those issues in the article.  I’m particularly opposed to using the Rome Statute’s supposed “object and purpose” (which I would argue is combating impunity, not ensuring that states provide defendants with due process) to defeat the clear intention of the drafters of Article 17.  Doing so is theoretically incoherent, regardless of what the VCLT says.  Besides, as I’ve pointed out before, the ordinary meaning of “bring the person concerned to justice” is “convict,” not “guarantee due process.”  So at worst the meaning of Article 17(2)(c) is ambiguous — in which case even the VCLT allows recourse to the drafting history, which makes clear that the absence of due process does not make a state unwilling to prosecute .

    As for Article 67, I think it is extraordinarily clear that the article is limited to the ICC’s determination of the charge.  After all, it’s in the section of the Rome Statute that governs trials at the ICC. Article 62 provides that “the place of the trial shall be the seat of the Court,” and like Article 67 it does not specifically limit the article to the ICC. Does that mean all trials, even national ones, have to be held in The Hague? If not, then it’s clear that Article 67 is limited to ICC prosecutions.

    As for Articles 53 and 55, you are wrenching “justice” from its context.  Article 17 uses the expression “bring the person concerned to justice”; Articles 53 and 55 do not.  In fact, a contextual argument cuts the other way, because the only other Article in the Rome Statute that uses the “bring to justice” expression is Article 20, the ne bis in idem provision.  If “bring to justice” means “provide due process,” then Article 20 allows the Court to convict a person for a second time who has already been convicted unfairly in a national prosecution — while not allowing the Court to invalidate the first conviction.  That makes no sense.

    I would be completely unsurprised if the Court eventually agrees with you and other critics of my article.  The entire history of ICL is littered with human-rights lawyers relying on teleological reasoning to ignore the intended meanings of treaty provisions.  But that doesn’t make it right — and it certainly wouldn’t be right here, given that the drafters specifically banished international standards of due process from Article 17.

  6. Kevin,

    On balance, I agree with most of your points, although not your first one about object and purpose.  Surely the object and purpose of the RS is best understood by reference to the Preamble.  And the preamble expressly states that one purpose is to ensure lasting respect for international justice.  I don’t think you can simply ignore that.  You might disagree about what the court should do to effectuate that purpose, but it is clearly a purpose of the ICC.  Thus it is a relevant concern when interpreting the terms of the RS.

    I agree that one meaning of “bring the person to justice” is convict, and that may even be the most common way to understand that particular phrase, but I don’t think that it is the only reasonable way to construe it.  Of course, “justice” itself has multiple meanings, but the first one in most dictionaries is something along the lines of “the quality of being just.”  I do agree that we would then be in a situation of ambiguity and that resort to legislative history is appropriate.  On a related point, my french is pretty bad, but the French text of 17(2)(c) appears to support your interpretation.  I am not able to read the other versions, although this would surely be relevant.

    I also agree that the phrasing of Arts. 53 and 55 (interests of justice vs. bring the accused to justice) makes them of marginal utility as a means for interpreting Art. 17.

    I am not sure that you can dispense with the court’s obligations under 67 quite so quickly.  Certainly, 67 was intended primarily to guide the court in its trials, that’s why it appears in that part of the RS.  But the text of 67 is not so restrictive.  Maybe the introductory language about “in determination of any charge” could be used to limit it as the admissibility challenge is arguably not a determination of any charge.  But I would be a little troubled by a finding that the ICC’s duty to ensure the rights of accused is limited only to trials and does not apply in any other context.

    I guess I also plead guilty to your charge of teleological reasoning.  I think it would be bad for the ICC’s integrity and for the overall purposes that lie behind the Rome Statute for it reach a conclusion that propaganda trials with predetermined outcomes by states divest the ICC of jurisdiction so long as the accused is eventually found guilty.  That may be exactly what the people who wrote the RS intended.  But, if so, I think it was a lousy decision (at least in hindsight) and not one that is conducive to accomplishing the other goals of the ICC.

  7. Stuart,

    As to your last point, I agree completely — and I make it very clear in the article that I think the rejection of the Italian proposal was a bad idea.  But the solution is to amend Article 17, not to rely on abstract statements about international justice (which this arguably doesn’t even involve, except at the most abstract level; Article 17 is about protecting state sovereignty, not promoting international justice) to trump the clear intentions of the drafters of the Rome Statute.  The Rome Statute was drafted by state representatives and ratified by states; judges have no business discarding the meanings they negotiated because of general Preambular statements that were never intended to affect Article 17. Indeed — and this is one of my major problems with the VCLT — how do we know what the object and purpose of a treaty is without reference to the intention of the drafters?

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