Libya’s Dorda Prosecution — and My Modified Due Process Thesis

A few weeks ago, I wrote a long post explaining the one way in which the absence of due process in a national prosecution could make a case admissible before the ICC.  The post drew a distinction between two different kinds of national prosecutions: (1) one that fails to satisfy international standards of due process; and (2) one that fails to satisfy national standards of due process.  I argued that the first kind of prosecution is never admissible before the ICC, because the failure to satisfy international due process makes the defendant easier to convict, which does not satisfy the “unwillingness” prong of Art. 17(2) of the Rome Statute.  But I pointed out that the second kind of prosecution could be admissible, because the government’s failure to comply with the state’s own legal requirements could lead the judiciary to suspend or terminate the prosecution — thereby making the defendant more difficult, not easier, to convict.

I offered that argument in the context of the OPCD’s report on Saif Gaddhafi, which catalogs numerous ways in which the new Libyan government’s treatment of Saif violates the state’s domestic criminal law.  In my view, that treatment renders Saif’s case admissible before the ICC, because it significantly increases the likelihood that a Libyan court will suspend or terminate Saif’s prosecution on due process grounds.  I received a number of critical comments on that claim, most of which argued that no Libyan court would ever have the temerity to enforce Libyan criminal procedure against the government if it meant “helping” Saif avoid conviction.  That may well be true — but consider what has happened in the prosecution of Buzeid Dorda, a senior intelligence official in the Gaddhafi government:

A Libyan judge suspended the trial of a senior Gaddafi-era intelligence official on Tuesday after his defense lawyer said the proceedings were unconstitutional.

Charges against Buzeid Dorda, arrested last September in Tripoli, include killing civilians, providing weapons to kill civilians, and conspiring to provoke civil war.

“The trial has been suspended until the Supreme Court looks at an appeal I raised that could deem the trial unconstitutional,” defense lawyer Dhao Al-Mansouri Awon said.

Pre-revolution laws governing emergency courts, called the People’s Court, were still in use despite being banned after the uprising which toppled Muammar Gaddafi last year, Awon said.

Under People’s Court laws, which the Gaddafi administration used to try opposition members and political prisoners, one or more people with no legal training could pass judgments without the need for a judge, jury or lawyers to be present in court.

“Even though the court itself was cancelled, the law governing it is still functioning and that would make the trials invalid,” Awon told Reuters.

Dorda had said in July he had been denied the right to meet privately with a lawyer and had been subjected to illegal interrogations during his 10 months in detention.

His trial, which began on June 5, has been adjourned several times for procedural reasons.

[snip]

On Sunday, Justice Minister Mohammed Al-Alagy told reporters that the trials of Gaddafi-era officials were “invalid” because the prosecutor general’s office was not following the necessary legal procedure and was also using People’s Court laws.

Under Libyan law, an Indictment Chamber reviews cases and then refers them to the appropriate court. But Alagy said prosecutors were bypassing this body and demanded they review their procedures and the legal rights of those held in custody.

This is the fifth time that Dorda’s trial has been suspended on the ground that prosecutors failed to comply with Libyan criminal procedure.  If Dorda was wanted by the ICC, I think the Pre-Trial Chamber would be well within its rights to hold, in light of the prosecutors’ actions, either that “[t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice” or that the proceedings “are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”  And if that is true, it seems clear that the Pre-Trial Chamber would also be within its rights to reject Libya’s admissibility challenge involving Saif on similar grounds —  prosecutors have far more systematically ignored Libyan criminal procedure in his case than in Dorda’s.

The Pre-Trial Chamber is set to hear argument on Libya’s admissibility challenge on October 8.  We will see what happens.