PTC I’s Inconsistent Approach to Complementarity and the Right to Counsel

by Kevin Jon Heller

Pre-Trial Chamber I has granted Libya’s challenge to the admissibility of the case against Abdullah al-Senussi. This is obviously a major win for the Libyan government, especially given that the very same PTC denied its admissibility challenge regarding Saif Gaddafi.

There is much to like in the PTC’s decision. It takes a very broad approach to the “same conduct” requirement with regard to the definition of a “case” — something I’ve long advocated. (Indeed, I’ve advocated jettisoning the rule entirely.) It reaffirms that states are not obligated to prosecute international crimes as international crimes; ordinary crimes are sufficient. And it once again rejects the idea that the failure of a domestic proceeding to live up to international standards of due process makes a case admissible, rightly emphasizing that due process is relevant only insofar as the failure of a domestic prosecution to live up to national standards of due process threatens the viability of that prosecution.

That said, there is one very problematic aspect of the PTC’s decision in al-Senussi: its treatment of al-Senussi’s right to counsel is completely inconsistent with its decision in Gaddafi. In Gaddafi, PTC I held that Libya’s failure to provide Gaddafi with an attorney meant that it was “unable” to prosecute him within the meaning of Art. 17(3) of the Rome Statute (emphasis mine):

213.  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 concerned 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.

The Libyan government has also failed to appoint an attorney to represent al-Senussi — a fact it openly acknowledges. Yet now, for some reason, the PTC does not consider that fact to be fatal to Libya’s admissibility challenge:

307. The Chamber is of the view that the problem of legal representation, while not compelling at the present time, holds the potential to become a fatal obstacle to the progress of the case. Indeed, as recalled above, according to the Libyan national justice system, trial proceedings cannot be conducted in the absence of a lawyer for the suspect. However, as observed at several junctures of the present decision, the admissibility of a case must be determined in light of the circumstances existing at the time of the admissibility proceedings. The Chamber must therefore determine whether the current circumstances are such that a concrete impediment to the future appointment of counsel can be identified. It appears, by Libya’s own admission, that the fact that Mr Al- Senussi is yet to obtain legal representation is primarily due to “security difficulties”.

308. The Chamber observes that contrary to the situation in relation to Mr Gaddafi, who is not under the control of the State national authorities and for whom attempts to secure legal representation have repeatedly failed. Mr Al-Senussi is instead imprisoned in Tripoli by the central Government, and Libya submits that “recently, several local lawyers have indicated their willingness to represent Mr. Al-Senussi in the domestic proceedings.” In its Final Submissions, Libya has confirmed that “many local lawyers from Mr Al-Senussi’s tribe have indicated their willingness to represent Mr. Al-Senussi but have not yet been given a formal power of attorney [and] [i]t is expected that this final hurdle to securing legal representation will be overcome at the order of the Accusation Chamber in the very near future”. The Chamber has no reason to put into question the information provided by Libya in this regard, or to consider it refuted by the existence of certain security challenges across the country. In these circumstances, the Chamber cannot conclude at this point in time that the situation is such that Mr Al-Senussi’s case will be impeded from proceeding further on the grounds that Libya will be unable to adequately address the current security concerns and ensure the provision of adequate legal representation for Mr Al-Senussi as necessary for the subsequent judicial proceedings as presently envisaged.

There is quite simply no way to reconcile PTC I’s approach to inability in the two cases. The crux of the PTC’s argument in al-Senussi is that Libya’s ongoing failure to provide al-Senussi with counsel does not render Libya unable to prosecute him, because the Libyan Code of Criminal Procedure only categorically requires a defendant to have counsel at trial. The proceedings have not yet reached the trial stage, so Libya is not yet unable to prosecute al-Senussi.

Fair enough — but that was also true when Libya challenged the admissibility of the case against Gaddafi. At that point in time, the trial stage of the proceedings against Saif were even more temporally distant. So if “the admissibility of a case must be determined in light of the circumstances existing at the time of the admissibility proceedings,” PTC I should have held Saif’s case inadmissible because Libya’s failure to provide him with counsel had also not yet made Libya unable to prosecute him. Indeed, PTC I should have been willing to overlook Libya’s inability to gain custody of Saif and its failure to have adequate witness-protection procedures in place, as well, because those failures had also not made Libya unable to prosecute at the time of the admissibility decision. Perhaps by the time the Accusation Chamber confirms the charges against Saif, the Zintani militia will have handed him over to the government, all of the prosecution’s witnesses will have been adequately protected, and Saif will have been given a simply awesome Libyan attorney. Hope, after all, springs eternal.

Nor is it adequate for PTC I to distinguish the two cases on the ground that Libya is somehow more likely to provide al-Senussi with counsel prior to trial than Saif (implied by its statement that Saif, unlike al-Senussi, is being held by the Zintan militia and that attempts to provide Saif with counsel have “repeatedly failed”). To begin with, if you read the paragraphs above, it is clear that Libya’s representations concerning its efforts to provide al-Senussi with counsel are no different that the representations it previously made about its efforts to provide Saif with counsel. So there is no reason to believe that Libya will any more successful regarding al-Senussi. (Particularly as it’s abundantly clear that Libya, far from trying and failing to provide al-Senussi with an attorney, has done everything in its power to prevent him from obtaining one.)

More importantly, though, speculation about what Libya might do in the future is inconsistent with the PTC’s own insistence that “the admissibility of a case must be determined in light of the circumstances existing at the time of the admissibility proceedings.” At the time of the proceedings in al-Senussi, the defendant did not have an attorney — full stop. The possibility that Libya might provide al-Senussi with counsel prior to trial should be irrelevant.

The bottom line is this: either the PTC’s “at the time” requirement applies, in which case it should have deemed both al-Senussi and Gaddafi inadmissible, or it does not, in which case it should have deemed both al-Senussi and Gaddafi admissible. PTC I cannot have it both ways.

For my part, I’m on the side of PTC I in its Gaddafi iteration. The “at the time” requirement is the worst kind of formalism, one that countenances the government systematically violating Libya’s domestic due-process requirements, no matter how serious and how threatening to a successful prosecution, until the very moment that trial begins. That cannot be the proper interpretation of Art. 17 of the Rome Statute. When assessing inability, a PTC must be able to assume that an unacceptable state of affairs will continue — at least in the absence of evidence to the contrary. That is precisely what PTC I did in Gaddafi, refusing to accept Libya’s unsubstantiated assertions that it would be able to provide Saif with counsel prior to trial. And that is precisely what it should have done in al-Sensussi when faced with the same kind of unsubstantiated assertions.

Ben Emmerson, al-Senussi’s ICC-appointed counsel (who, of course, has never been allowed to meet with his client), has made clear he will appeal PTC’s decision. I hope the Appeals Chamber will decide which iteration of PTC I it prefers.

http://opiniojuris.org/2013/10/12/ptc-inconsistent-approach-right-counsel/

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