The Al-Senussi Defence’s Unfortunate Adoption of the Due Process Thesis

I have been making my way through the defence response to Libya’s admissibility challenge. It’s excellent, both with regard to why Libya is not prosecuting the “same conduct” as the ICC and with regard to why Libya is currently unable to genuinely prosecute Al-Senussi. I was particularly struck by the defence argument that Libya does not currently have complete control over the detention centre in which Al-Senussi is being held, making the “inability” argument more similar than I imagined to the one in Saif’s case. It’s an interesting, and potentially powerful, argument.

That said, in this post I want to quibble with the defence’s adoption of what I’ve called the Due Process Thesis (DPT) — the idea that a national prosecution’s failure to live up to international standards of due process makes a case admissible before the ICC. The DPT is incorrect: due process is relevant to a national prosecution only insofar as a national prosecution’s failure to live up to domestic due-process requirements threatens the viability of a prosecution.

It’s unfortunate that the defence response adopts a number of problematic arguments in favor of the DPT, such as focusing on the statement in Art. 17(2)(c) of the Rome Statute that a case is admissible if “[t]he proceedings were not or are not being conducted independently or impartially.” Here is what the defence says:

153. This is confirmed by the language of Article 17(2)(c) which makes a case inadmissible on the basis of “unwillingness” where “[t]he proceedings were not or are not being conducted independently or impartially”. This is set out without distinction as to a process that leads to an unjust acquittal as opposed to an unjust conviction. The standard is itself drawn from international human rights law, including the ICCPR which has been ratified by Libya and requires judicial and prosecutorial independence and impartiality in all criminal proceedings.

Actually, the distinction is made in the very next clause of Art. 17(2)(c), which provides that “and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.” Note the conjunctive “and”: it is not enough for proceedings to lack independence or impartiality; that absence must make it more difficult to convict the defendant. Indeed, the defence fails to mention that 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” — a rejected proposal that would have made Art. 17(2)(c) function exactly as the defence says it functions now.

To be sure, in the next paragraph of the response the defence tries to argue — obliquely referencing the tie between independence/impartiality and making it more difficult to convict — that “bring to justice” actually just means “justice”:

In addition, the relevant subparagraphs of Article 17(2) make “unwillingness” dependent on a finding that the State does not have an intent to “bring the person concerned to justice”. This echoes the statement in the Preamble to the Statute confirming that in creating the Court its founding States were “[r]esolved to guarantee lasting respect for and the enforcement of international justice”. The term “international justice” surely cannot mean justice only where the accused is shielded from guilt.

Unfortunately, it means precisely that — as I show in my article criticizing the DPT. In fact, “bring the person to justice” does not “echo” the reference to “international justice” at all — save for the fact that the word “justice” is in both expressions. “Bring to justice” actually has a very specific meaning in the context of Art. 17(2)(c): namely, to convict.

I don’t blame Al-Senussi’s defence team for dusting off the DPT thesis. It’s obviously a tempting argument to make in the context of defending someone who, like Al-Senussi, is facing a national prosecution that will not provide due process. But I am troubled by the fact that the defence motion also claims — incorrectly — that the Gaddafi admissibility decision adopts the DPT. It makes that claim twice, first in para. 147 (emphasis added):

147. The Chamber recognised in the Gaddafi Admissibility Decision that the extent to which the suspect or accused has been afforded human rights — and in particular due process rights — under national and international law is relevant to assessing a state’s “inability” genuinely to investigate or prosecute a case.

Actually, the PTC did not recognize the relevance of international standards of due process. As I pointed out in my recent post on the decision, although Saif’s defence team made the same argument Al-Senussi’s defence team is now making, the PTC specifically limited the relevance of due process to national standards (emphasis mine):

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.

The Al-Senussi defence also provides a problematic interpretation of the Saif admissibility decision in para. 151:

151. An ability and willingness to conduct genuine national proceedings in compliance with principles of due process must mean that the proceedings can neither be designed to acquit nor designed to convict. Although Libya attempts – in violation of established Vienna Convention principles on treaty interpretation – to read any meaning out of the key terms ‘unwilling’, ‘unable’ and ‘genuine’, suggesting that all three refer to nothing more than ‘sham proceedings’ to shield an accused from criminal responsibility, this view is no longer tenable in light of the Chamber’s analysis in the Gaddafi Admissibility Decision.

Nothing in the PTC’s decision supports this argument. On the contrary, although it did not specifically state that only national due process violations that make it more difficult to convict render a state “unable,” that limitation seems clearly implied in its treatment of Libya’s failure to provide Saif with a lawyer. Recall what it said in para. 214:

[T]he 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.

This statement does not evidence concern that the failure to provide Saif with counsel would make it impossible for Libya to hold a fair trial; the concern is that the failure would make it impossible under Libyan law to hold a trial at all — a situation that would be tantamount to shielding Saif from accountability. So although the PTC’s statement does not completely foreclose the argument that a state’s failure to live up to domestic standards of due process makes a case admissible regardless of whether that failure makes it easier to convict or acquit, it provides no support for that argument, either.

As I said at the outset, the Al-Senussi defence team has written a compelling response to Libya’s admissibility challenge. It’s embrace of the DPT, however, is problematic — and will no doubt be rejected by the PTC.