The Kenyan government has asked the Security Council to pass a resolution deferring the prosecution of Uhuru Kenyatta and William Ruto, the newly-elected President and Deputy President of Kenya. That’s not surprising; the Kenyan government has been doing everything in its power to undermine the ICC. What is surprising, though, is that Ruto has explicitly disavowed the request:

Through lawyer Karim Khan, Ruto says that the application neither represents government policy nor his personal wishes. In an interview with Capital FM News, Khan says that his client never had input in the application.

“His Excellency the Deputy President would like to dissociate himself with the application by ambassador Macharia Kamau as it does not represent his desire. He was never consulted in the making of the application and not in the presentation.

He said that Ruto who was sworn into office last month was committed to upholding the Constitution which included respect for independent institutions.

Khan said that President Uhuru Kenyatta – also indicted by the ICC – had also given his word on honoring international obligations.

Khan reiterated that the United Nations Security Council had no power to terminate proceedings saying that the ICC was an independent court. He said that it is only the ICC judges could make a decision on the termination of the cases or otherwise as the court, which he said had independent judges fully seized of the matter.

“The application is a distraction from the reality which is that no institution can interfere with the independence of the court. The judges have sworn an oath and they are the only ones who can make a decision on the matter,” he said.

He maintained that Ruto who had cooperated with the court since he was named among the suspects who have the greatest culpability in the 2007/08 post poll chaos will continue to cooperate with the court until he is vindicated.

Khan is wrong, of course, when he says that the Security Council cannot terminate the case. Article 16 of the Rome Statute gives the Security Council just that power — although it would have to pass a new deferral resolution each year, because Article 16 limits individual deferrals to 12-month increments.

That aside, Ruto’s statement raises some interesting questions. First, if Kenyatta agrees with Ruto, how can the “Kenyan government” be asking the Security Council to intervene? Reports indicate that the request was signed by Kenya’s ambassador to the UN — who presumably works for Kenyatta and Ruto. So it would seem that Kenyatta and Ruto would be well within their rights to withdraw the request. Does their failure to do so indicate that, in fact, Kenyatta and Ruto are not actually on the same page?

Second, why has Ruto disavowed the request? Color me skeptical that his opposition is motivated by a principled belief in the authority and legitimacy of international organizations. More likely, he simply believes that he is unlikely to be convicted — a not unreasonable assumption, given the many problems that have plagued, and continue to plague, the Kenya cases. If Ruto is confident of acquittal, his opposition to deferring the prosecution makes perfect sense: he will have much more freedom to operate as an acquitted war criminal than as an accused one. (See, e.g., Omar al-Bashir.)

We’ll see how this plays out.

UPDATE: Kenya’s Attorney General has now also disavowed the request. What is this, a UN Ambassador gone rogue?

I have now had the opportunity to read both Judge van den Wyngaert’s request to be excused from the Kenyatta case and the Presidency’s decision to grant that request. There is no question that workload did indeed play a role in the Judge’s decision to withdraw. But it also seems clear that there was at least one other reason, as I will explain below.

To begin with, though, I want to apologize to anyone — especially the Judge! — who saw my post as an attack on Judge van den Wyngaert’s integrity. That was certainly not its intent; I have nothing but respect for the Judge. Indeed, I intended the post to praise the Judge for her willingness to challenge the prosecution’s conduct openly and in writing, while still questioning whether withdrawing from the case was a good idea or consistent with the ICC’s rules. Unfortunately, having re-read the post a few times, I can see that I was nowhere near clear enough in expressing my intent. I should have avoided talking about “convenient excuses” and the like. My apologies again to anyone who thought I was attacking the Judge.

Now, my thoughts in light of the newly-released documents. First, my (at least partial) misinterpretation of the Judge’s actions reflects an ongoing problem with the Court’s release of information to the public. Had the Court made the relevant documents available in a timely fashion, I would have written the post differently — and more importantly, the Kenyan press would have found it more difficult to further discredit the case against Kenyatta by drawing a connection that may not actually exist. All too often, though, critical documents are either never put on the ICC website or are uploaded days after decisions themselves attract attention. I can usually hunt down documents I need, whether through personal connections or by asking for them here on the blog. But too many others depend solely on the website. Something needs to be done.

Second, to echo David Koller’s comment to my previous post, I am a bit baffled by the idea that Judge van den Wyngaert was only temporarily assigned to the Trial Chamber in the Kenyatta case. Here is paragraph 2 of her request to be excused:

On 30 March 2012, I was requested to accept temporary assignment to Trial Chamber V, in view of the limited capacity of judges in the Trial Division, as the newly elected judges assigned to that Division had not yet been called to The Hague. I accepted this assignment on the clear understanding that it would be limited in time and only for the purposes of the preparation of the two Kenya trials.

I am not completely convinced that the Rome Statute and Rules of Procedure and Evidence allow such a temporary assignment. Art. 39(4) of the Rome Statute does provide that “[n]othing in this article shall… preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court’s workload so requires.” My guess, though, is that the drafters of Art. 39(4) assumed that PTC judges would be temporarily assigned to the TC for the duration of a particular case, not simply for part of it. I could be wrong about that and invite readers to weigh in. Regardless, such temporary assignments are a terrible idea — not only because the departure of a judge just before trial can prejudice one of the parties (as I still believe is the case regarding the defence in the Kenyatta case), but also because they actually waste judicial resources by requiring two different judges to familiarize themselves with the case.

Third, and most importantly, I still have to disagree with those who insist — in the comments to my previous post or via email — that Judge van den Wyngaert withdrew solely because of her workload. Two very cryptic statements in the Presidency’s decisions contradict that idea (emphasis added):

The Judge submits that her assignment to that Chamber was temporary, only for the purpose of the preparation of the two Kenya cases for trial. REDACTED.

[snip]

The Presidency, having considered the matter before it, finds the request to be well founded. In coming to this conclusion the Presidency took particular note of the workload and REDACTED of the Judge as described above.

The second statement in particular makes clear there is more to the Judge’s desire to withdraw than just workload. I have no idea what the other rationale might be — although it’s impossible not to speculate that it is indeed that the Judge does not trust the prosecution to conduct itself fairly in the Kenyatta case. (And no, that’s not a criticism of the Judge!)  Maybe it’s not; maybe the rationale is completely different. But once again we have an optics problem: I think the public has a right to know precisely why a judge who has been so openly critical of the prosecution in an important case wants to be excused from that case. And I fail to see what could possibly justify the Presidency’s decision to redact the additional rationale — with no explanation whatsoever.

We need answers, and we need them sooner rather than later.

I cannot find the relevant document on the ICC website, but Kenya’s CapitalFM is reporting that Judge Christine van den Wyngaert, sitting in the Trial Chamber, has withdrawn from the case against Uhuru Kenyatta because of concerns about the prosecution’s behavior:

In her opinion the prosecution failed to disclose to the Pre-Trial Chamber on the credibility of witness four and disclosing new evidence after confirmation stage.

“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started,” she stated.

She further agreed with Kenyatta’s argument that the prosecution introduced evidence and witnesses that had not been disclosed before.

“I stress the concerns expressed in the decision about the overwhelming number of post confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter.

Wyngaert observed that even though the prosecution faced challenges it has not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.

“The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she opined.

However in her concurrence with the other two judges, she explained that the hitches on the side of prosecution were not weighty enough to warrant a referral to the Pre Trial Chamber or withdrawal of charges against Kenyatta.

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4.

I’m not sure quite what to make of this, and it’s difficult to draw conclusions without reading Judge van den Wyngaert’s concurrence. That said, three (tentative) points. First, and perhaps most obviously, Judge van den Wyngaert’s withdrawal casts the prosecution in an extremely unflattering light. I cannot imagine that the Judge would have withdrawn unless she was profoundly concerned by the prosecution’s actions.

Second, I have serious reservations about the Judge’s decision to withdraw, given that — ironically — it clearly benefits the prosecution. If Judge van Wyngaert’s concerns were simply procedural, the prejudice to the defence might be minimal. But the CapitalFM article seems to imply that the Judge has questions about the merits of the prosecution’s case — its failure to conduct a thorough investigation in particular. (Recall that Article 54 of the Rome Statute provides that the prosecution must, “[i]In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”) As a result, Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it. That hardly seems fair to the defence.

Third, and finally, I am not sure whether there is even a legal basis for Judge van den Wyngaert to withdraw. Art. 41(1) of the Rome Statute provides that “[t]he Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.” The key is the final clause, because Rule 35 of the RPE says that “[w]here a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused” (emphasis added). A request to withdraw from a case thus seems to require the presence of one of the grounds for disqualification listed in Rule 34 — personal interest in a case, conflict of interest, etc. Disagreeing with the prosecution’s conduct in a case is not such a ground for disqualification, although it is important to acknowledge that Rule 34 does not make the list exclusive (“inter alia“). Even so, I think it sets a very bad precedent for the Presidency to agree to excuse a judge on the ground that she has a problem with the prosecution’s conduct. That hardly seems like a ground for disqualification, no matter how liberally such grounds are construed.

UPDATE: Zach was kind enough to provide a link to Judge van den Wyngaert’s concurrence. The concurrence reinforces my point that the Judge’s withdrawal is significantly unfair to the defence, because it deprives Kenyatta of a judge who was clearly willing to question the strength of the prosecution’s evidence. Paragraph 4 is particularly revealing:

Finally, there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case. This negligent attitude is particularly apparent in relation to Witness 4′s evidence because, as the Prosecution concedes, ‘the Office as a whole was on notice, prior to the confirmation hearing, of the inconsistencies in the account Witness 4 gave during his [second] screening’. The Prosecution offered a number of explanations for overlooking the problems with Witness 4′s evidence. However, what all these explanations reveal is that there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff. Clearly, thorough and comprehensive due diligence with regard to the reliability of the available evidence is an ongoing obligation of the Prosecution under article 54(1)(a), which is as important as the collection of that evidence itself.

If I were the defence, I would try to challenge Judge van den Wyngaert’s withdrawal. Nothing in the Rome Statute expressly permits a party to challenge or appeal a judicial disqualification, but such a right would seem to be implied by Article 41(2)(b), which provides that “[t]he Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.” The right to request disqualification should be accompanied by the right to challenge the same.

UPDATE 2: Writing for Reuters, Thomas Escritt says that Judge van den Wyngaert withdrew from the Kenyatta case because of her workload, not because of her criticisms of the prosecution. I do not doubt that Escritt’s reporting is more accurate than the Kenyan media’s, but I find it difficult to believe that there is no connection between the Judge’s criticisms and her decision to withdraw. She certainly could have withdrawn from a different case — one in which she had not savagely criticized the prosecution — instead. “Workload” strikes me as little more than a convenient excuse — and I stand behind the suggestion that the defence should challenge the Judge’s decision to withdraw. Still, it is important to acknowledge Escritt’s reporting.

The Pre-Trial Chamber has granted the OPCD’s request to withdraw from the case and has appointed the OPCD’s chosen replacement, John RWD Jones QC, to represent Saif until such time as he is either able to choose his own lawyer or the ICC finally rules on Libya’s admissibility challenge. Jones is a fantastic choice — he successfully represented both Oric and Markac at the ICTY, established the Defence Office at the Special Court for Sierra Leone, and is one of the world’s leading extradition scholars and practitioners.

That said, the OPCD’s rationale for withdrawing should give us all pause:

The OPCD submits that an imminent depletion in staffing will disrupt the continuity of Mr Gaddafi’s representation and will significantly affect its ability to fulfil its mandate in a timely and effective manner. The OPCD suggests that replacement of counsel for Mr Gaddafi at this juncture would facilitate a smooth transition in representation and would ensure that new counsel has sufficient time to acquaint themselves with the case in advance of potential appellate proceedings.

Reading between the lines, it seems clear that the OPCD is facing a significant funding crisis. That’s a serious problem, given the critical role the OPCD plays in the overall defence scheme at the ICC.

The OPCD deserves our praise for its advocacy of Saif’s interests — efforts that never wavered, even when Melinda Taylor and her colleagues were illegally and unconscionably detained by the Libyan government. Best of luck to Jones, whom I have no doubt will do an equally superb job.

Omar al-Bashir, the President of Sudan, visited Chad earlier this year. The Chadian government made no attempt to arrest him, despite the fact that — as a member of the ICC — both SC Res. 1593 (the Darfur referral) and the Rome Statute obligated it to cooperate with the Court’s arrest warrant. Human rights groups criticized Chad’s unwillingness to arrest Bashir at the time, and now the Pre-Trial Chamber has formally referred Chad’s non-cooperation to the Security Council. Here are the relevant paragraphs of its judgment:

22. In this context, the Chamber wishes to point out that, unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the States’ cooperation, without which it cannot fulfil its mandate. When the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Court as constituting a threat to international peace and security, it is expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant State Party to the Statute to cooperate in fulfilling the Court’s mandate entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the Security Council, any referral by the Council to the ICC under Chapter VII would never achieve its ultimate goal, namely, to put an end to impunity. Accordingly, any such referral would become futile.

23. Having said the above, the Chamber recalls article 87(7) of the Statute according to which, “[wjhere a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute [...] the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council”. Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council.

Although necessary, this is a risky move by the ICC. As Mark Kersten has repeatedly documented, the Security Council has proven far more willing to refer situations to the Court than to ensure that the Court has the ability to successfully investigate those situations. If the Security Council stays true to form and fails to respond to the PTC’s referral, it will do significant damage to the Court’s legitimacy. Why should any suspect fear arrest while traveling abroad if the Security Council won’t even penalize ICC member-states that fail to comply with its own resolutions?

Stay tuned.

Ben Emmerson, counsel for al-Senussi, has asked the Pre-Trial Chamber to refer Libya to the Security Council for ignoring its February 6 decision ordering Libya to transfer al-Senussi to the Court. Here are the key paragraphs:

3. It has been almost six weeks since the Chamber‟s Order of 6 February, and Libya has failed to comply with every one of these instructions. Libya has failed to make any attempt to transfer Mr. Al-Senussi to the ICC and continues to detain him in Libya in violation of Security Council Resolution 1970 and the orders and requests of the ICC. Libya has ignored a formal request from the Registry to send representatives to The Hague to make arrangements to facilitate Mr. Al-Senussi‟s transfer and has not taken any other action to arrange his surrender.

4. Instead, the Libyan authorities continue to detain Mr. Al-Senussi, and are actively preparing to commence his trial in Libya as soon as possible. In so doing Libya has also violated the injunction contained within the Chamber‟s 6 February Order to the effect that Libya must refrain from any action which could hinder or delay his immediate transfer to the ICC.

5. Libya has also ignored the third order made by the Chamber requiring arrangements to be made for a privileged legal visit by appointed Defence Counsel. Mr. Al-Senussi has now spent six months in detention in Libya (from September 2012 to date) being questioned about criminal allegations without access to counsel. This in itself makes any claims regarding the fairness of proceedings in Libya untenable.

[snip]

8. This case has reached a point at which the impasse between Libya and the ICC can only be broken by a referral to the Security Council. If the authority of the Court is to be respected, its orders and requests must be complied with. Further latitude would simply enable Libya to perpetuate its tactics of delay, obfuscation and prevarication and its consistent attempts to mislead the Chamber and the Registry as to its true intentions. Libya’s intentions and actions are very clear.

None of this is remotely surprising, of course. But it puts the lie to Libya’s constant claims in Saif’s case to be cooperating fully with the Court. Libya only cooperates when it gets what it wants.

Libya has filed yet another brief concerning the admissibility of the case against Saif Gaddafi. The new brief is more than 50 pages long, so it’s going to take some time to digest. But we really don’t have to go beyond pages 22-24, because Libya’s admissions in those paragraphs doom — or at least should doom, if the Pre-Trial Chamber would ever actually rule — its admissibility challenge:

48. The Libyan Government does not deny that Saif Al-Islam Gaddafi remains in Zintan (one of the largest cities in north-western Libya) and that efforts to arrange his transfer to a detention facility in Tripoli are ongoing.[57] During his incarceration in Zintan Saif Al-Islam Gaddafi has been visited by representatives of the International Committee of the Red Cross and Human Rights Watch on several occasions.[58] Permission was granted by the Minister of Justice, Salah Marghani, for a further visit by Human Rights Watch on 4 March 2013.[59] It is now a matter for Human Rights Watch to arrange this visit at their earliest convenience.

49. Since 30 October 2012 each of the extensions of Saif Al-Islam Gaddafi’s periods of detention have been judicially approved by Tripoli based judges[60] who have travelled to Zintan to conduct a private hearing (ie. a closed session) on the extension of his remand period. These hearings have been facilitated by the local authorities in Zintan without any difficulties. The Libyan Government
understands that the reference on the remand extension documents to these hearings bearing held in public is an error as the hearings were held in closed session and were not open to members of the public.

50. The Libyan Government will shortly begin implementation of its recently devised proposal for the members of the Zintan brigade responsible for guarding Saif Al-Islam Gaddafi in Zintan to be trained and regularised so as to form part of the judicial police which would then guard him upon his transfer to a central government controlled prison in Tripoli. It is not possible to say with any certainty the exact date of Mr Gaddafi’s transfer to Tripoli but it is understood that this will occur before the earliest possible estimated commencement date of the trial in May 2013.

51.It is anticipated that if the national security proceedings, which are presently in the pre-trial phase and for which there was a public court hearing[61] in the Zintan court on 17 January 2013, are to proceed to trial that once Saif Al-Islam Gaddafi is transferred to Tripoli these proceedings will also be transferred to the Tripoli court.

The first thing to note is that, even if these claims are true, Libya is still currently “unable” to prosecute Saif within the meaning of Art. 17(3) of the Rome Statute…

The win in question concerns the privileged documents the Libyan government seized from Melinda Taylor and her OPCD colleagues while they were meeting with Saif Gaddafi in Libya. In late January, the OPCD asked the Pre-Trial Chamber to order Libya to return the documents and destroy any copies it had made of them. Here is what it argued, as summarized by the Pre-Trial Chamber:

That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically — and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the “unwillingness” prong of the the admissibility test:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable… (a)  The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5.

As I noted in my previous post, Libya has not denied that Saif will be prosecuted in Zintan before (supposedly) being prosecuted in Tripoli; indeed, Taha Baara, the official spokesperson for Libya’s General Prosecutor, specifically told Reuters last month that ”[i]nvestigations for trying him for war crimes are over and he will be put on trial for that at a later time.” That acknowledgment needs to be read in conjunction with a number of statements by Libya.  First, Libya insists that it is responsible for both prosecutions — thereby denying the disquieting possibility that the Zintan case is being prosecuted by a militia over which the Libyan government has no control (para. 6; emphasis mine)…

As I have explained before, Libya’s admissibility challenge must fail if it cannot ensure that the militia in Zintan who have Saif custody will transfer him to the government to stand trial, because Art. 17(3) of the Rome Statute deems a state “unable” to prosecute if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused.” A state’s inability to apply its criminal law to all of its territory is the prototypical example of “unavailability.” Moreover, in a hearing at before the Pre-Trial Chamber last October, the Libyan government admitted on the record that a trial in Zintan on the conduct at issue in the ICC proceedings could not satisfy Art. 17 (pp. 19-20; emphasis mine):

Since the filing of Libya’s 1 May 2012 challenge, the investigation of Mr Gaddafi has continued to progress and other arrangements for his trial have been made by the new government. These arrangements include the building of a courtroom complex and prison facility in Tripoli, which is known as Tajura, and although there’s been some recent contention in the press as to the planned location of any future trial, President el-Magariaf confirmed to the press on 22 September 2012 that there is no prospect of a trial taking place in Zintan due to inadequate courtroom facilities and the other infrastructure that will be needed for a trial.

With each passing day it becomes increasingly clear that Libya has no reasonable prospect of obtaining Saif from the Zintan militia anytime soon. The OTP’s most recent filing makes clear (para. 43) that it is not satisfied that Libya can obtain Saif — skepticism that needs to be taken particularly seriously in light of the OTP’s consistent support for a domestic prosecution. (Which seems to be changing, given the OTP’s most recent filing and a couple previous ones.) And the OPCD’s most recent filing – a withering critique of Libya’s attempts to support its admissibility challenge with anything more than unsubstantiated allegations — provides far more detail concerning  Libya’s lack of control over the Zintan milita holding Saif…

Last May, I offered some critical thoughts on Opinio Juris about Charles Taylor’s 50-year sentence at the Special Court for Sierra Leone.  I have just finished a short essay (8,000 words) on Taylor’s sentence that will appear in an upcoming issue of the Journal of International Criminal Justice; you can find the essay on SSRN. Here is the introduction:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence must not be ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.

Comments and criticisms welcome!

The OTP has weighed in on Libya’s ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error. Here are the relevant paragraphs (emphasis mine):

42. However, the Prosecution also notes that not all detention centers, including apparently the one holding the suspect in this case, are under the control of the Minister of Justice and Libya has no access to certain detainees held in these centers. Further, abuses and deaths have occurred in detention centers in 2012,

43. Most notably, Libya does not clarify whether it has gained custody over Saif Al-Islam and when his transfer to Tripoli will be effected…

44. Nonetheless, the investigation of the case against Saif Al-Islam has progressed and the Libyan legislation does permit a trial in absentia. Hence, and in light of the evidence submitted and notwithstanding the challenges faced by Libya as a post-conflict country, the Prosecution concludes that Libya appears, at this time and in light of the materials considered, able to conduct the proceedings.

Libyan criminal law may permit a trial to be held in absentia, but the Rome Statute does not. Article 17(3) of the Rome Statute is explicit on this point — a state cannot be considered “able” to prosecute a defendant if it does not have that defendant in custody (emphasis mine):

In order to determine inability in a particular case, 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 its proceedings.

This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it actually effectuates Saif’s transfer, therefore, its admissibility challenge must fail.