Inability and Due Process in the Saif Gaddafi Admissibility Judgment

By any standard, the Pre-Trial Chamber’s rejection of Libya’s admissibility challenge is a crushing defeat for the Libyan government. Libya’s challenge failed for two basic reasons: (1) Libya is not investigating the same case as the OTP; and (2) Libya is currently unable to genuinely prosecute Saif. I will address the first ground, which I think is legally correct but practically problematic, in a subsequent post. In this post I want to discuss the second ground, Libya’s inability to genuinely prosecute, with which I basically agree.

The PTC identifies three reasons why Libya’s is unable to genuinely prosecute Saif within the meaning of Art. 17(3) of the Rome Statute, which deems a state “unable” if, “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 its proceedings.” First, the PTC notes that Libya has not demonstrated that is is able to obtain Saif from the Zintan militia that is holding him:

207. The Chamber has no doubt that the central Government is deploying all efforts to obtain Mr Gaddafi’s transfer but, in spite of Libya’s recent assurances, no concrete progress to this effect has been shown since the date of his apprehension on 19 November 2011. The Chamber is not persuaded that this problem may be resolved in the near future and no evidence has been produced in support of that contention.

This rationale for denying Libya’s admissibility challenge is unassailable, as I have pointed out numerous times before. (See here, for example.)

Second, the PTC says that the Libyan government’s lack of control over certain detention centres means it cannot guarantee that all of the witnesses necessary for a domestic prosecution will be able to testify:

209. The Chamber is also concemed about the lack of capacity to obtain the necessary testimony due to the inability of judicial and governmental authorities to ascertain control and provide adequate witness protection…

210. Contrary to the suggestion of the Prosecutor, the Chamber is of the view that [the] lack of full control over certain detention facilities has a direct bearing on the investigation against Mr Gaddafi. In this regard, it is noteworthy that in the 1 May 2012 Admissibility Challenge, Libya envisaged taking the statements of two witnesses for Mr Gaddafi’s case. In response to a subsequent request for clarification by the Chamber, the Libyan Government stated that it has not been possible for the Libyan prosecuting authorities to conduct interviews with these two individuals as they are presently being held in detention facilities which are not yet under the control of the Libyan Government.

This rationale also seems sound, if not as strong as the first one.

Third, and most interesting, the PTC concludes that Libya is “otherwise unable to carry out its proceedings,” because it has not been able to provide Saif with a defence attorney, even though Libyan law guarantees him one (emphasis mine):

212. The Libyan Government submits that the suspect has not exercised his right to appoint counsel as set out in article 106 of the Libyan Code of Criminal Procedure. The Defence cautions that significant practical impediments exist to securing any legal representation for Mr Gaddafi in view of the security situation in Libya and the risk faced by lawyers who act for associates of the former regime.

213. The Chamber notes that this position was confirmed by the Libyan Government during the Admissibility Hearing. Indeed, attempts to secure legal representation for Mr Gaddafi have seemingly failed. In response to a query from the Chamber as to the concrete steps that have been taken in order to secure independent legal representation for Mr Gaddafi, Libya indicates that Libyan Ministry of Justice officials have engaged in continuing high level contacts with the Libyan Law Society and the Popular Lawyer’s Office in order to find a suitably qualified lawyer. Later, Libya added that it is in the process of approaching the Bar Associations of Tunisia and Egypt in order to obtain suitably qualified and experienced counsel who will be permitted, together with a Libyan lawyer, to represent Mr Gaddafi.

214. These submissions, however, fall short of substantiating whether and how the difficulties in securing a lawyer for the suspect may be overcome in the future. The Chamber notes that Libya has recently submitted that the interrogation of Mr Gaddafi without the presence of his counsel is not a breach of Libyan law, as the presence of counsel during interrogations pursuant to article 106 of the Libyan Code of Criminal Procedure is only required where counsel has been appointed. However, the Chamber is concemed that this important difficulty appears to be an impediment to the progress of proceedings against Mr Gaddafi. If this impediment is not removed, a trial cannot be conducted in accordance with the rights and protections of the Libyan national justice system, including those enshrined in articles 31 and 33 of its 2011 Constitutional Declaration.

Two thoughts on this rationale. First, at the risk of sounding self-serving, the PTC appears to have adopted my position on the relationship between national due process and the principle of complementarity: namely, that although a state’s failure to live up to international standards of due process does not make a case admissible before the ICC (which is what the defence argued, as the PTC notes in para. 154), a state’s failure to respect its own national due process standards does — at least where that failure threatens the viability of the prosecution’s case. That is precisely what the PTC holds with regard to Libya’s failure to provide Saif with a defence attorney, as the bolded text indicates. Indeed, the PTC makes the point more generally earlier in the judgment:

200. The Chamber considers that the ability of a State genuinely to carry out an investigation or prosecution must be assessed in the context of the relevant national system and procedures. In other words, the Chamber must assess whether the Libyan authorities are capable of investigating or prosecuting Mr Gaddafi in accordance with the substantive and procedural law applicable in Libya.

I obviously agree with this approach. Although the ICC was not designed to pass judgment on whether national criminal-justice systems live up to international standards of due process, there is nothing wrong with the Court ensuring that states do not undermine the viability of domestic prosecutions by ignoring their own due-process protections.

That said, I find it curious that the PTC considers Libya’s failure to provide Saif with defence counsel to represent “inability” instead of “unwillingness.” I’m sure it does to minimize the potential affront to Libya, but it’s a legally problematic move. Unwillingness is a subjective criterion; it asks whether the state challenging admissibility is engaging in actions designed to shield a suspect from impunity. Inability, by contrast, is an objective criterion; it asks whether, despite the state’s best intentions, its national criminal-justice system is simply structurally incapable of conducting an effective prosecution. There is nothing structurally wrong with Libya’s criminal-justice system, because the Libyan Code of Criminal Procedure protects Saif’s right to counsel. The problem is the Libyan government: although it has the ability to provide Saif with competent defence counsel — international or national — it simply does not want to. That is unwillingness, not inability.