The OTP Retracts Its Statement About in Absentia Trials

by Kevin Jon Heller

I noted a few days ago that the OTP made a serious legal error when it suggested that Libya’s challenge to the admissibility of the case against Saif could succeed even if Libya had to try Saif in absentia.  Fortunately, the OTP has recognized its mistake and withdrawn its submission:

The Prosecution wishes to retract its reference to the possibility of conducting trials in absentia in Libya. Article 17(3) of the Statute indicates that “the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out proceedings”. Hence, Libya will not be able to conduct the proceedings within the terms of Article 17(3) if it cannot get custody of Saif Al-Islam as a result of “a total or substantial collapse or unavailability of its national judicial system” and the possibility of conducting a trial in absentia is not relevant for such determination.

This is absolutely correct, and the OTP deserves credit for being willing to admit its mistake and correct the record.

6 Responses

  1. Kevin I feel you’ve overstated the effect of the section. It says the Trial Chamber “shall consider” those matters. As you would know from Administrative law, a tribunal that “shall consider” something is entitled to consider it, then discard it. It would be open for the Trial Chamber to say “we have considered that Libya cannot get custody of Saif, but the procedures for trial in absentia are nonetheless appropriate and make the judicial system available”. It’s not the blanket prohibition you make it out to be.

  2. E,

    I disagree — as, obviously, does the OTP.  17(3) does not say “may consider”; it says “shall consider.”  Not perfect wording, perhaps, but it would defeat the entire point of the inability criterion — to say nothing of complementarity itself — if the PTC could find inability but ignore it.

  3. Consider means, according to a quick Google search, to “Think carefully about (something), typically before making a decision”
    So, the Trial Chamber, in determining whether or not a State is unable, “shall think carefully about … whether the State can obtain the accused”.
    I never suggested it says “may consider”, my attack of your interpretation is at the word “consider”.

    More importantly, I am not saying the Trial Chamber can find “inability” and ignore it, article 17(3) goes to how the Trial Chamber finds inability, right Kevin? It begins with “in order to determine inability… [the Trial Chamber shall think carefully about whether the accused can be captured]” is my interpretation, where do I go wrong? 🙂

    I’m not so sure whether the OTP disagrees either. Sometimes I’m not sure they know up from down and likely read your blog and got cold feet about their position.

  4. E,

    I’m confused.  You said in your first comment, “a tribunal that ‘shall consider’ something is entitled to consider it, then discard it.”  Yet now you seem to say that the Court cannot find inability and then ignore it.  Which is it?  If you can clarify your point, I’ll try to respond to it.

  5. Kevin,
    I think E is saying that the language “shall consider” is procedural. According to his view, inability is an issue that cannot be ignored by the Court, but that does not mean that, after consideration, the Court cannot find the issue of inability to be not determinative in the present circumstances, and thus discard it. In other words, it cannot ignore the issue, but it may discard it after consideration.

  6. Kevin
    My response to you the other day was, on reflection, unnecessarily rude and personal. And also quite clearly incorrect!  My apologies.

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