One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I’s remarkable unwillingness to question Libya’s strategic invocation of its precarious “security situation.” As described by Libya, that situation really is magic — somehow managing to prevent the Libyan government from doing anything to protect al-Senussi’s rights without preventing the government from prosecuting al-Senussi.
Consider the issue I discussed in my previous post – Libya’s failure to provide al-Senussi with an attorney. Here are the PTC’s two relevant statements, from paras. 292 and 307:
In the Chamber’s view, the fact that Mr Al-Senussi’s right to benefit from legal assistance at the investigation stage is yet to be implemented does not justify a finding of unwillingness under article 17(2)(c) of the Statute, in the absence of any indication that this is inconsistent with Libya’s intent to bring Mr Al-Senussi to justice. Rather, from the evidence and the submissions before the Chamber, it appears that Mr Al-Senussi’s right to legal representation has been primarily prejudiced so far by the security situation in the country.
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”.
The first thing to be said is that Libya blaming its failure to provide al-Senussi with counsel on its security situation is not an “admission” – it is Libya’s preferred framing of the issue. Libya is desperate to prevent the ICC from reaching the opposite conclusion: namely, that al-Senussi lacks counsel because the government has done everything in its power to prevent him from obtaining one. Were the PTC to (correctly) blame Libya for al-Senussi’s lack of counsel, Libya would have two problems: (1) the case for unwillingness would be greatly strengthened, because Libya’s intentional denial of al-Senussi’s right to counsel would threaten the viability of his prosecution once the accusation stage is complete; and (2) the case for inability would also be greatly strengthened, because Libya would not be able to plausibly maintain that once the security situation improves, there will be no impediment to providing al-Senussi with counsel.
To put it mildly, PTC I’s mantra-like invocation of Libya’s “security situation” is less than convincing. To begin with, the PTC never explains why the security situation in Libya prevents the government from providing al-Senussi with counsel. The PTC simply cites Libya’s reply and a Human Rights Watch press release, neither of which justifies its conclusion The one paragraph in Libya’s reply concerning al-Senussi’s lawyer (para. 146) claims only that “several local lawyers have indicated their willingness to represent Mr. Al-Senussi in the domestic proceedings.” The reply does not name those lawyers, nor does it provide any evidence in support of its claim that they exist. Moreover, the Human Rights Watch press release is revealingly entitled “Libya: Ensure Abdallah Sanussi access to a lawyer.” It does not attribute al-Senussi’s lack of counsel to the security situation in Libya; on the contrary, it specifically mentions the numerous times the Libyan court overseeing al-Senussi’s detention has ignored his request for an attorney, to which he is entitled even at the investigative stage of the proceedings.
Even more problematic, nothing in the record suggests that the security situation in Libya will somehow magically improve between now and the beginning of al-Senussi’s trial. As even casual Libya observers know, the security situation is getting worse by the day. Indeed, Judge van den Wyngaert, though joining in the admissibility decision, took the unusual step of appending a declaration to the decision expressing concern about the recent kidnapping of Libya’s Prime Minister and stating that she “would have preferred to seek submissions from the parties and participants as to whether Libya’s security situation remains sufficiently stable to carry out criminal proceedings against Mr Al-Senussi.” Even if it attributes al-Senussi’s lack of counsel to the “security situation,” therefore, PTC I has absolutely no reason to accept Libya’s assertions that it will be able to provide al-Senussi with counsel prior to trial.
And that, of course, is the problem with PTC I’s new “at the time of the admissibility decision” test for complementarity, which I criticized in my previous post. Al-Senussi’s lack of counsel may not threaten his prosecution right now — but it eventually will. And that is true regardless of whether al-Senussi’s lack of counsel reflects Libyan strategy or the security situation in Libya.