Emerging Voices: Configuring Admissibility Challenges in the ICC–Civil Dispute or Part of the Criminal Proceedings?

[Dr. Gilad Noam teaches international criminal law at the Hebrew University and is also a practicing attorney at Israel’s Ministry of Justice]

What is the underlying nature of a dispute between a State and the Prosecutor of the International Criminal Court (ICC) on issues of complementarity?  Are the proceedings in which a State challenges the admissibility of a situation or a case akin to inter-state disputes before international judicial or arbitral bodies? To what extent is the fact that such proceedings precede a criminal trial relevant?  These issues have practical implications, particularly on issues of burden and standard of proof.

The ICC has not produced significant jurisprudence on these issues in its first eleven years of existence. Decisions on issues of complementarity have focused on the technical interpretation of statutory provisions, usually in challenges brought by defendants. To a large extent, this is the result of the prevalence of “self-referrals” in those situations which have been brought to the Court, meaning that the relevant states have not sought challenge the prosecutions brought in the ICC. In the few non-self-referred situations in which states have objected to ICC proceedings (Sudan, Kenya and Libya), the nature of the admissibility dispute between those states and the Prosecutor, and rules establishing the burden and standard of proof in those disputes, have not been addressed methodically.

The issue did arise recently, however, when Libya challenged the admissibility of the cases brought by the Prosecutor against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, claiming that its national judicial system was actively investigating those cases. On May 31^st, the Pre-Trial Chamber rejected Libya’s admissibility challenge with regard to Gaddafi (the admissibility challenge with regard to Al-Senussi is still pending) on the ground that Libya is “unable” to carry out the investigation. Libya appealed the decision. While various aspects of the admissibility challenges were discussed extensively in this blog and other forums, the controversy between Libya and the Prosecutor on issues of burden and standards of proof was largely overlooked. The controversy sheds light, however, on the nature of admissibility proceedings in the ICC and the procedural rules that should apply in that context.

Libya and the Prosecutor agreed that the burden of proving that there is an ongoing investigation or prosecution of the case falls upon the State challenging the admissibility of the case, according to a “balance of probabilities” standard. The Prosecutor submitted that because the State has superior access to the relevant information, the State bears the burden of proving inadmissibility with respect to both limbs of the complementarity test (namely, that proceedings are ongoing in the State, and that the State is willing and able to genuinely investigate and prosecute). Libya disagreed. It argued that the burden of showing that proceedings were inadequate (as opposed to the fact of their existence) lies with the Prosecutor, on the basis that there exists a general principle of international law that sovereign acts within a State’s domestic jurisdiction are presumed to be valid, and that States exercising jurisdiction should be presumed to be acting in good faith. In view of the serious nature of the allegation that a State is not genuinely investigating or prosecuting international crimes, Libya argued that the standard of proof must be very high.

The Pre-Trial Chamber’s decision only narrowly dealt with the issues of burden and standard of proof and did not remove existing ambiguities. In its May 31^st decision, the Chamber held that a State claiming that a case is inadmissible bears the burden of proof. Despite its clear rejection of Libya’s claims, however, the Chamber left ambiguous the question of the standard of proof regarding the adequacy of domestic proceedings:

“… an evidentiary debate on the State’s unwillingness or inability will be meaningful only when doubts arise with regard to the genuineness of the domestic investigations or prosecutions. Depending on the circumstances, the Chamber may seek additional evidence… The Chamber will determine, in light of its own assessment, whether it is satisfied that the State is conducting genuine investigations or prosecutions on the basis of the submissions and the evidence received in response.”

The Chamber then cited from the Appeal Chamber’s decision in Kenya’s admissibility challenge, which held that, “the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case.” It then noted that it had reminded Libya “of the necessity to provide concrete, tangible and pertinent evidence that proper investigations are currently ongoing.”

In Libya’s pending appeal, it is rightly noted that the Chamber’s decision speaks of the “type of evidence” that might satisfy the standard of proof, rather than the standard of proof itself, and that it fails to explain why the State bears the burden to prove both limbs of the admissibility test.

As things appear now, however, it seems that the Libyan situation is another example of hard cases making bad law, or, perhaps, a hard case preventing the Chamber from clarifying the law. The Chamber’s missed opportunity to address this matter seems to leave open three major ways to view admissibility challenges by states: (a) as part of criminal proceedings; (b) as “civil” disputes (akin to inter-state disputes before international courts); or (c) as sui generis proceedings combining features from criminal, civil and, perhaps, administrative contexts.

Considering the unique features of admissibility challenges before the ICC, the third alternative is perhaps the most appropriate.   

The ICC is a criminal court and admissibility challenges are closely linked to criminal proceedings that may eventually take place. Additionally, the serious nature of the allegation that a State has not carried out adequate proceedings in order to displace its sovereign jurisdictional functions seems to justify at least a quasi-criminal standard, in keeping with the spirit of the principle of complementarity.

On the other hand, admissibility challenges are not part of the criminal trial itself, and essentially reflect a disagreement between a state and the Prosecutor regarding the proper venue for pursuing the matter, not wholly dissimilar to certain inter-state disputes. Nevertheless, the analogy to inter-state disputes does not provide a definite answer as to the applicable standard of proof, as there is no uniform international standard in “civil” cases. As a general principle, the burden in such cases usually lies with the party relying on an argument. . The standard of proof is not uniform and depends on context. In the Corfu Channel and Genocide cases, for example, the ICJ adopted a standard of “fully conclusive evidence” or “proof at a high level of certainty” in order to prove serious allegations against a State, including (in the latter case), allegations that a state committed genocide or failed to prevent and prosecute the crime (similar in some ways to allegations that a state is not genuinely willing or able to investigate or prosecute). Moreover, the ICJ rejected the claim (which was similar to the Prosecutor’s argument in the Libyan case) that the mere fact that a state had the relevant information in its possession justified shifting the burden of proof.

The above jurisprudence seems to support the legal tests concerning the burden and standards of proof put forward by Libya. In my opinion, the Chamber’s failure to  rule on these issues, while placing a heavy burden on Libya to provide evidence that shows that it is genuinely able to investigate, and, eventually, rejecting Libya’s admissibility challenge, result from the incompatibility of the complementarity principle with Security Council-referred situations. These situations are similar to the establishment of ad hoc Tribunals for the conflicts in the former Yugoslavia and Rwanda, which were governed by the “primacy” of the international forum, rather than by complementarity notions. In such situations, where the Security Council has determined that it is in the interests of international peace and security to refer the matter to an international judicial forum, it seems justifiable to shift the burden of proof as to both limbs of the complementarity test (existence and adequacy of domestic proceedings) on to the State, as argued for by the Prosecutor, especially in cases in which there are doubts whether the national judiciary is “available” as the case was here.  It is to be hoped that the Appeal Chamber will clarify the law on these important questions in the near future.