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

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

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.

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Marko Milanovic

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… Read more »


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… Read more »

Stuart Ford

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… Read more »

Stuart Ford

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… Read more »


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