In doing research on Aung San Suu Kyi, I recently came across this wonderful discussion from 2005 on the role of the intellectual in society. It comes in the form of a dialogue with Alan Clements in his book, The Voice of Hope: Aung San Suu Kyi: Conversations with Alan Clements.

Clements: I brought with me a quote from Václav Havel in which he explains the role of the intellectual within society. When I first read it, I instantly thought of you. He writes, “The intellectual should constantly disturb, should bear witness to the misery of the world, should be provocative by being independent, should rebel against all hidden and open pressures and manipulations, should be the chief doubter of systems … and for this reason, an intellectual cannot fit into any role that might be assigned to him … and essentially doesn’t belong anywhere: he stands out as an irritant wherever he is.”

Suu Kyi: I would agree with everything that Václav Havel says. I would say that basically, in order to become an intellectual you’ve got to have a questioning mind…. Intellectuals are very important in any society. Because they are the ones who, like in the quotation, are provoking people, opening them to new ideas, pushing them along to new heights. This is one of the tragedies of Burma–the intellectual is not allowed any place within the society. And the real intellectual, of the kind described by Václav Havel, would not be allowed to survive in Burma.

Clements: Why?

Suu Kyi: He would either have to repress his instincts as an intellectual, or he would have to leave Burma, or he would have to go and sit in prison. He’s got to choose between those three.

Clements: So by function, a totalitarian regime attempts to create a mindless, featureless society by crushing the intellectual?

Suu Kyi: The intellectual with his questioning mind threatens the totalitarian mind which expects orders to be carried out and decrees to be accepted without question. There will always be clashes between the authoritarian mind and the questioning mind. They just cannot go together.

I think it is easy in a free society to forget how important an intellectual is to the welfare of a country. The right to question and doubt is taken for granted. Freedom of thought and expression are a given. Skepticism of the system is encouraged. Intellectuals are often discouraged because they too are taken for granted. “I’m just an intellectual,” we sometimes think.

As you go about your work today give thanks that you are an intellectual in a free society. As you watch the Commander-in-Chief tonight propose his agenda for his Second Term, marvel not with what he says, but that he is accountable for every word and deed to the intellectuals–the Doubters-in-Chief.

The same cannot be said of much of the world. Over one-half of the world’s population live in closed societies. Burma, of course, is rising. It no longer is among the worst of the worst. That dishonor goes to the forlorn citizens of these fifteen Asian and African authoritarian regimes: Belarus, Chad, China, Cuba, Eritrea, Equatorial Guinea, Laos, North Korea, Saudi Arabia, Somalia, South Ossetia, Sudan, Syria, Turkmenistan, and Uzbekistan.

In a free society intellectuals are encouraged to speak their minds with reason and integrity. Our colleagues living under authoritarian regimes must speak with equal measures of insight and courage.

As we wait with bated breath for the Supreme Court’s decision in Kiobel, it is worth remembering that there are viable alternatives to ATS litigation. That was particularly evident last week when The Hague District Court in the case of Akpan/Royal Dutch Shell. Here’s the Judicial Press Release (translated by Pieter Bekker):

Four Nigerian farmers and fishermen, together with Milieudefensie, commenced the lawsuits in The Netherlands, because they hold four entities within the Shell group, with its headquarters in The Hague, accountable for the damage resulting from four specific oil spills near their villages in Nigeria. The district court has found that the four oil spills were not the result of poor maintenance by Shell, but were caused by sabotage by third parties. Based on the applicable Nigerian law, an oil company in principle is not liable for oil spills resulting from sabotage. On this principal ground, all claims in four out of the five cases have been dismissed. With regard to the four lawsuits regarding an oil spill near the village of Goi in 2004 and an oil spill near the village of Oruma in 2005, the district court is of the view that Shell Nigeria took sufficient measures to prevent sabotage of its submerged oil pipelines. For this reason, and applying the general rule of Nigerian law, the Hague district court has dismissed the claims of plaintiffs Oguru, Efanga and Dooh in those four lawsuits.

In the lawsuit concerning two oil spills near the village of Ikot Ada Udo, the district court has ruled that Shell Nigeria has violated its ‘duty of care’ under applicable Nigerian law and has committed the ‘tort of negligence.’ In 2006 and 2007, an act of sabotage was committed in a very simple way near that village by using an English wrench to remove above-ground heads of an oil well abandoned by Shell Nigeria. Shell Nigeria could and should have easily prevented the sabotage by installing a concrete plug prior to 2006, whereas it only did so in 2010 while the lawsuit was pending. Consequently, the district court has ordered Shell Nigeria (i.e., Shell Petroleum Development Company of Nigeria Ltd, the Nigerian subsidiary of the Shell group) in that case to pay compensation to the Nigerian plaintiff, Mr. Akpan. The amount of compensation will need to be determined in a separate procedure, because to date the parties have only litigated the issue of liability, and the level of damages has not been addressed. Milieudefensie has brought the lawsuits together with the Nigerian plaintiffs. In the view of the district court, Milieudefensie has standing to defend environmental interests in Nigeria before the courts in The Netherlands. However, according to Nigerian law the oil spills in Nigeria are not unlawful vis-à-vis Milieudefensie and for this reason the claims of Milieudefensie have been dismissed.

Dutch courts and the parent companies of Shell The cases have been adjudicated by the Dutch court, because the claims are not only directed at Shell Nigeria, but also target the current British parent company of Shell, which has its headquarters in The Hague. The former parent companies of the Shell group in London and The Hague have also been sued. In interim rulings issued in 2009 and 2010, the district court ruled that it is justified to adjudicate the lawsuits against all Shell entities in The Netherlands, because those lawsuits are all closely connected.

In its final rulings of 30 January 2013, the district court has dismissed all claims against the parent companies, because (in short) under Nigerian law a parent company in principle is not obligated to prevent its subsidiaries from injuring third parties abroad and in the present case there are no special reasons to deviate from the general rule.

Here is a portion of Bekker’s commentary on the ruling (reprinted from OGEMID listserve with Pieter Bekker’s permission):

On January 30, 2013, the district court in The Hague, The Netherlands, announced in a press release that it has ruled that Shell Petroleum Development Company of Nigeria Ltd. (SPDC or “Shell Nigeria”), a member of the Royal Dutch Shell group of companies, is liable to pay compensation to plaintiff Friday Alfred Akpan, a resident of the Nigerian village of Ikot Ada Udo situated in Akwa Ibom State in the Niger Delta. Applying Nigerian law, the Dutch court found that Shell Nigeria had breached its duty of care and had committed the tort of negligence by failing to take sufficient measures to prevent sabotage by third persons to Shell Nigeria’s submerged pipelines near the Nigerian village in 2006 and 2007. The amount of compensation will be determined in a subsequent phase of the proceeding. The full text of the ruling (in Dutch) is yet to be released.

The lawsuit against Shell constitutes the first time that a Dutch multinational has been sued before a civil court in The Netherlands in connection with allegations of damage caused abroad by a subsidiary and appears to be part of a trend of plaintiffs from the developing world turning to the courts in developed countries for redress against multinationals.

Four Nigerian farmers and fishermen, along with Milieudefensie, the Dutch branch of the environmental group Friends of the Earth, had brought five separate lawsuits against four Shell entities and their parent company before the District Court in The Hague, claiming compensation for oil pollution damage suffered locally by the Nigerian plaintiffs in four incidents between 2004 and 2007, and allegedly caused by poor maintenance on the part of the Shell defendants.

The Hague court dismissed all claims in all but one proceeding after finding that the oil contamination was caused by sabotage by third persons as opposed to Shell’s poor maintenance of its local oil installations and that there was no evidence of Shell’s negligence in those cases. Under Nigerian law, an oil company in principle is not liable for oil pollution damage caused by third-party sabotage.

Importantly, the court dismissed all claims against Shell Nigeria’s co-defendant and parent company, Royal Dutch Shell plc, which has its headquarters in The Hague, referring to the general rule of Nigerian law according to which a parent company is not obligated to prevent foreign subsidiaries from injuring third parties abroad and finding no special reasons to deviate from the general rule. The court had found in interim rulings that it had jurisdiction over the claims against all of the Shell defendants because those claims were closely connected.

While the court accepted the Dutch environmental group’s standing to defend environmental interests in Nigeria before the courts in The Netherlands alongside the Nigerian plaintiffs, it rejected the NGO’s claims because oil pollution in Nigeria is not unlawful vis-à-vis the Dutch-based group under Nigerian law.

All plaintiffs have announced that they will appeal the district court’s ruling insofar as it concerns the court’s dismissal of the four other lawsuits and its rejection of the claims against the parent company.

The full text of the opinion (in Dutch) is available here. For more on Dutch human rights and environmental rulings similar to Akpan, see this amicus brief.

As I will discuss in greater detail later, such cases strongly suggest that domestic tort laws may be a viable alternative solution to ATS litigation. There is a wealth of cases (including US cases) applying tort law and conflict of laws that address many of the same factual scenarios that are presented in ATS litigation. Such cases will be particularly important if, as I suspect, the Supreme Court narrowly construes the ATS in Kiobel.

UPDATE: An English translation of the decision is available here.

Here’s a gem from Libya’s latest submission in its challenge to the admissibility of the case against al-Senussi (emphasis mine):

The Libyan Government observes that there has been a recent increase in filings in this case, no doubt due to the retention of new counsel for Mr Al-Senussi. Libya of course understands that counsel for Mr Al-Senussi will rightly want to explore all avenues of recourse for his client. However, it is hoped that in the future the Defence for Mr Al-Senussi will not file unfounded and repetitive applications before the Court containing serious allegations against the Libyan Government which are premised solely on inaccurate media reports. It is an unfortunate fact that inaccurate media reporting is frequent and inevitable and it is for this reason counsel are encouraged to properly substantiate all future allegations made to the Court, the Security Council, the UN Assistant SecretaryGeneral for Human Rights and the UN High Commissioner for Human Rights.

Yes, you read that right: the Libyan government, which has spent the past year baselessly impugning the integrity of the OPCD, now has the temerity to accuse al-Senussi’s lawyer, Ben Emmerson QC, of filing “unfounded and repetitive” applications with the Court based on unsubstantiated allegations. Ben Emmerson QC, who currently serves as the UN’s Special Rapporteur on Counter-Terrorism and Human Rights and as the British judge on the ICTY’s Residual Mechanism; who has been a special advisor to the ICC Prosecutor and to the judges at the ECCC; and who has literally decades of experience litigating cases at international courts and tribunals.

And what are the unsubstantiated allegations Emmerson has supposedly made on the basis of “inaccurate media reports”? There are only two such allegations mentioned in the motion that so aroused Libya’s ire: (1) that Libya intended to put al-Senussi on trial in a month (para. 2); and (2) that Libya paid Mauritania $200,000,000 to extradite al-Senussi (para. 29). The first allegation did indeed prove to be inaccurate, but Emmerson can hardly be blamed for making it — the news article in question simply quoted Taha Bara, the official spokesperson for Libya’s Prosecutor General, to that effect. If the spokesperson was somehow misquoted, Libya made no attempt to correct the record. As for the second allegation — well, I’ve dealt with the persuasiveness of Libya’s response to that one before. I’ll simply note here that Libya’s response (para. 18) to Emmerson’s “unsubstantiated allegation” relied solely on the unsubstantiated allegation of the former Libyan Deputy Prime Minister, as quoted in a news article.

Pot, meet Kettle.  I’m sure you’ll be fine friends.

We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers…

Libya has filed a lengthy response to a series of Pre-Trial Chamber questions about the domestic proceedings against Saif. There is much of interest in the motion, but what particularly caught my eye is Libya’s open admission that it has repeatedly interrogated Saif and confronted him with witnesses in the absence of defence counsel. Here are the relevant paragraphs (emphasis mine):

49. In the period since 1 May 2012, testimonies regarding the actions of Saif Al-­Islam Gaddafi have been obtained from individuals who previously operated at the highest civilian and military levels of the Gaddafi regime. These individuals include [Redacted]. Mr. Gaddafi himself has also been interviewed on a number of occasions since 1 May 2012 (the last occasion being on 13 November 2012), and has been confronted with witnesses who have given testimonies in his case during such interviews.

51. The procedure for prosecution team interviews is that a private meeting is scheduled, to be attended by the witness and prosecution lawyers (other people are not permitted to be present at such meetings). The witness is then asked to swear an oath that he or she will tell the truth in answering the questions posed by members of the prosecution team. The questions asked of the witness and the witness’ answers to these questions are then written down, and each page of the witness testimony is sealed by the witness with their signature and/or fingerprint, as well as the signature of the attending representative/s of the prosecution team. The accuracy of witness testimonies which might be contested by the suspect are verified through a process under Libyan law known as confrontation (Article 106 of the Criminal Procedure Code). During this process the accused person in the investigation (i.e. Mr. Gaddafi) is presented with each witness whose account differs from that given by him, and is given the opportunity to refute the testimony of that witness in front of one or more member of the prosecution investigative team.

These uncounseled interrogations and confrontations categorically violate Libyan criminal procedure. (As readers know, I don’t think it’s relevant whether they violate international standards of due process.). Here is what Libya said in its original admissibility challenge…

I’ve been catching up on the lastest filings regarding Libya’s complementarity challenges, and I’ll have a post tomorrow about some shocking admissions by Libya concerning its planned domestic prosecution of Saif Gaddafi.  But I would be remiss if I didn’t point out now that Libya is denying — in writing, but apparently with a straight face — that it paid Mauritania $200,000,000 to extradite al-Senussi:

Serious evidential issues apply to Mr. Al-Senussi’s manifestly unsubstantiated allegations that Libya incited or provided “aid and assistance” to a violation of Resolution 1970 by Mauritania through the offer and payment of a sum of money in return for receipt of Mr. Al-Senussi. As outlined in Mr Al-Senussi’s Application, Libyan Government records establish that the payment of 250 million dinars to Mauritania which was approved by the Libyan General National Congress and recorded in a GNC Decision of 14 November 2012 (ie. more than 70 days following the extradition of Mr Al-Senussi to Libya from Mauritania), was made by way of bilateral aid “as a donation to the Mauritanian people”. Indeed, the former Libyan Deputy Prime Minister, Mostafa Abu Shagur, who was in office at the time of Mr Al-Senussi’s extradition, has confirmed that the payment made was consistent with Libya’s many other investments in Mauritania and was made specifically in order to assist the Mauritanian economy.

See?  The $200,000,000 wasn’t a bribe.  It was merely a good-hearted “donation to the Mauritanian people” from the generous and compassionate Libyan government.

If the ICC judges buy that, I have a nice bridge they might be interested in…

My friend Luc Reydams, who teaches at Notre Dame (which clearly has a better faculty than football team…), has just finished an absolutely superb — and extremely timely — essay on the relationship between US and Rwanda and its role in facilitating impunity for Kagame and his cronies.  Here is the abstract of the essay, which is available on SSRN:

This article examines whether the ICTR was doomed from the start to be a court of ‘victor’s justice.’ I explore the issue by re-examining the politics of the ICTR’s creation. Hundreds of declassified diplomatic telegrams (‘cables’) and intelligence reports of the US Department of State shed new light on this process. My analysis concentrates on the strategy of the RPF vis-à-vis the international community and the responses of the United Nations and United States. In a previous publication, I claim that US leadership is a necessary (but not a sufficient) condition for successful international prosecutions. Building on that research, I argue that understanding the evolution of the relation between Washington and Kigali – from an early, almost accidental support of the RPF to nearly unconditional backing – can help explain RPF impunity. I do not suggest that Washington planned to shield Kagame from international prosecution, or that the US was the only Security Council member to embrace him. However, once Washington entered into a partnership with the ‘new’ Rwanda, it was committed to moving forward – and this implied burying the past and oftentimes also ignoring the present. The result was victor’s justice in Arusha – and seemingly endless war in neighboring Congo.

I know Luc has just begun the process of finding a good home for the essay.  If you’re an editor of a good international-law journal, you should snap it up!

[Jelia Sane is studying for the English Bar at City University, London. She holds an LLM in Public International Law from University College London and has previously interned at the ICC, the Centre for Justice and International Law, and the Extraordinary Chambers in the Courts of Cambodia.]

The unanimous acquittal and subsequent release of Mathieu Ngudjolo Chui by Trial Chamber II of the International Criminal Court (ICC) on 18 December 2012 was a shock and disappointment to those following the work of the Court and development of international criminal justice. The Open Society Justice Initiative (OSJI) said the judgment sends a “worrying signal about the quality of ICC prosecutions,” and Human Rights Watch emphasized that the acquittal leaves the victims of the Bogoro massacre without justice. While it is disappointing that the Office of the Prosecutor (OTP) failed to present a solid case, the acquittal of Ngudjolo demonstrates that the judges of the ICC are independent, impartial, and will not convict the accused on the basis of weak evidence, showcasing their willingness and ability to uphold the law.

The Ngudjolo judgement is only the second judgment issued by the ICC (the Court’s first judgment, convicting Thomas Lubanga, was issued in March 2012). His case was expected to be an important milestone, as it was the first time that crimes against humanity and sexual violence offences had been charged at the ICC. The ruling represents a missed opportunity in this regard, as the judges based their acquittal on the assessment of Ngudjolo’s lack of authority, making no findings on the crimes themselves.

Background

The Prosecution alleged that Ngudjolo was the former leader of the Front des Nationalistes et Integristes (FNI), an armed rebel group in the Ituri region of the Democratic Republic of Congo (DRC) largely made up of combatants from the Lendu ethnic group. Relying on Article 25(3)(a) Rome Statute, the Prosecution argued that he was criminally responsible for the commission, jointly with Germain Katanga, the leader of another armed militia (the Force de Résistance Patriotique en Ituri, FRPI), of an FNI/FRPI attack against Bogoro village on 24 February 2003, during which 200 civilians were killed. They also alleged that he was directly responsible for the crime of using child soldiers, and that he and Katanga had a common plan to “wipe out” Bogoro. Ngudjolo was accused of three counts of crimes against humanity (murder, sexual slavery, and rape) and seven counts of war crimes (willful killing, directing an attack against civilians, pillage, the destruction of property, the use of child soldiers, rape, and sexual slavery).

Findings

Trial Chamber II held that it had not been proven beyond reasonable doubt that Ngudjolo was the commander of the Lendu combatants from Bedu-Ezekere at the time of the 2003 attack in Bogoro and, consequently, that he could not be proven to be responsible for the crimes charged. Given this finding, the judges declined to examine whether he had taken part in a common plan together with Germain Katanga to conduct the attack. The judges did emphasise however that this did not mean “that crimes were not committed in Bogoro on 24 February 2003 nor does it question what the people of this community have suffered on that day.”

In addition, the Chamber found that, at the material time, the use of child soldiers was a widespread phenomenon in the Ituri region, and that child soldiers were present during the Bogoro attack. However, it ruled that there was insufficient evidence to prove beyond reasonable doubt that the accused had used child soldiers before, during, or after the 2003 attack, or that there was any link between the presence of child soldiers in Bogoro and the accused.

The Trial Chamber’s Approach

The ICC’s first acquittal will undoubtedly be much discussed and debated. The OTP has indicated its intention to appeal the judgment which means that more developments will follow in the coming weeks and months. Nonetheless, a cursory reading of the judgment gives rise to the following two observations on the Chamber’s approach in reaching its decision.

According to Enough!, the OTP is investigating the actions of M23 and “other parties” in the DRC:

In the aftermath of the March 23 Movement, or M23, seizure of Goma, the International Criminal Court, or ICC,Chief Prosecutor Fatoua Bensouda announced that her office is investigating “allegations of ICC crimes by members and leaders of M23, and by other parties taking advantage of the chaos in the region.” While documenting the M23′s crimes is undeniably important, a robust ICC investigation into the other actors responsible for international crimes being committed across eastern Congo could provide much needed leverage to the international community as it seeks to broker peace in the troubled region.

It seems highly likely that the “other parties” in question are Rwandan military and political officials, who — according to the UN – have “created, equipped, trained, advised, reinforced and directly commanded the M23 rebellion.”  Indeed, the UN believes that a Rwandan general, Gen. Emmanuel Ruvusha, personally directed M23′s recent capture of Goma.

It is probably too much to ask for the ICC to bring charges against Kagame for his support of M23. Nevertheless, charges against senior Rwandan military officers would go a long way toward dispelling Kagame’s carefully-cultivated image as a positive force in Rwanda and the region. I doubt anyone in the region takes that myth seriously, but Kagame still has many credulous supporters in the West.

That said, the ranks of Kagame supporters are thinning.  The UK just announced that it is suspending £21m in aid to Rwanda because of concerns about its actions in the DRC.

Okay, not Saif Gaddafi.  Saadi:

Niger’s President Mahamadou Issofou has said his government is ready to hand Saadi Qaddafi over to the International Criminal Court should the body request it to do so.

To date, the ICC has not issued a warrant for Saadi’s arrest, and will not request his extradition unless that position changes. On 7 November, however, the ICC’s Chief Prosecutor Fatou Bensouda revealed that the court was investigating crimes allegedly committed by both Qaddafi regime members and revolutionaries during last year’s revolution, and may bring a new case in the near future.

Issofou’s offer is likely to infuriate the government in Tripoli, with Libya having issued several futile requests to Niger to hand Saadi over in the past year.

A member of his father’s inner circle, Saadi commanded the regime’s special forces during the revolution and it is claimed that he personally ordered his men to shoot unarmed protesters at the outset of the conflict, an allegation which Saadi denies. On 4 March 2011, Interpol announced it had issued a Red Notice for Saadi’s arrest, although only on charges of theft.

I don’t know whether Saadi’s criminal responsibility warrants prosecution.  Given that Libya has no intention of giving Saif to the ICC even if it loses its admissibility challenge, though, the OTP may want to seriously consider it.

I’ve written before about Judge Sow’s attempt to make a statement in open court criticizing Charles Taylor’s conviction.  Now Judge Sow has given a lengthy interview to the New African magazine concerning the trial, his attempt to make the statement, and his punishment afterward.  As Bill Schabas points out today, “[n]othing comparable has ever appeared in the history of international criminal justice.”  Judge Sow doesn’t mince words; he believes that the prosecution completely failed to prove Taylor’s guilt.  Here is a sample:

A few weeks ago, I wrote a long post explaining the one way in which the absence of due process in a national prosecution could make a case admissible before the ICC.  The post drew a distinction between two different kinds of national prosecutions: (1) one that fails to satisfy international standards of due process; and (2) one that fails to satisfy national standards of due process.  I argued that the first kind of prosecution is never admissible before the ICC, because the failure to satisfy international due process makes the defendant easier to convict, which does not satisfy the “unwillingness” prong of Art. 17(2) of the Rome Statute.  But I pointed out that the second kind of prosecution could be admissible, because the government’s failure to comply with the state’s own legal requirements could lead the judiciary to suspend or terminate the prosecution — thereby making the defendant more difficult, not easier, to convict.

I offered that argument in the context of the OPCD’s report on Saif Gaddhafi, which catalogs numerous ways in which the new Libyan government’s treatment of Saif violates the state’s domestic criminal law.  In my view, that treatment renders Saif’s case admissible before the ICC, because it significantly increases the likelihood that a Libyan court will suspend or terminate Saif’s prosecution on due process grounds.  I received a number of critical comments on that claim, most of which argued that no Libyan court would ever have the temerity to enforce Libyan criminal procedure against the government if it meant “helping” Saif avoid conviction.  That may well be true — but consider what has happened in the prosecution of Buzeid Dorda, a senior intelligence official in the Gaddhafi government:

A Libyan judge suspended the trial of a senior Gaddafi-era intelligence official on Tuesday after his defense lawyer said the proceedings were unconstitutional.

Charges against Buzeid Dorda, arrested last September in Tripoli, include killing civilians, providing weapons to kill civilians, and conspiring to provoke civil war.

“The trial has been suspended until the Supreme Court looks at an appeal I raised that could deem the trial unconstitutional,” defense lawyer Dhao Al-Mansouri Awon said.

Pre-revolution laws governing emergency courts, called the People’s Court, were still in use despite being banned after the uprising which toppled Muammar Gaddafi last year, Awon said.

Under People’s Court laws, which the Gaddafi administration used to try opposition members and political prisoners, one or more people with no legal training could pass judgments without the need for a judge, jury or lawyers to be present in court.

“Even though the court itself was cancelled, the law governing it is still functioning and that would make the trials invalid,” Awon told Reuters.

Dorda had said in July he had been denied the right to meet privately with a lawyer and had been subjected to illegal interrogations during his 10 months in detention.

His trial, which began on June 5, has been adjourned several times for procedural reasons.

[snip]

On Sunday, Justice Minister Mohammed Al-Alagy told reporters that the trials of Gaddafi-era officials were “invalid” because the prosecutor general’s office was not following the necessary legal procedure and was also using People’s Court laws.

Under Libyan law, an Indictment Chamber reviews cases and then refers them to the appropriate court. But Alagy said prosecutors were bypassing this body and demanded they review their procedures and the legal rights of those held in custody.

This is the fifth time that Dorda’s trial has been suspended on the ground that prosecutors failed to comply with Libyan criminal procedure.  If Dorda was wanted by the ICC, I think the Pre-Trial Chamber would be well within its rights to hold, in light of the prosecutors’ actions, either that “[t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice” or that the proceedings “are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”  And if that is true, it seems clear that the Pre-Trial Chamber would also be within its rights to reject Libya’s admissibility challenge involving Saif on similar grounds –  prosecutors have far more systematically ignored Libyan criminal procedure in his case than in Dorda’s.

The Pre-Trial Chamber is set to hear argument on Libya’s admissibility challenge on October 8.  We will see what happens.