I have just uploaded a new essay to SSRN, entitled “The International Commission of Inquiry on Libya: A Critical Analysis.”  The essay is a chapter of a book on international commissions of inquiry that is being edited by the LSE’s Jens Meierhenrich.  Here is the introduction:

This chapter provides a critical assessment of the International Commission of Inquiry on Libya, established by the United Nations Human Rights Council in February 2011 to investigate violations of international law committed in the Libyan Arab Jamahiriya. The chapter is divided into four sections. Section I provides a brief summary of the Commission’s creation, investigation, and findings. Section II assesses whether the Commission’s mandate and methods satisfied international standards of independence and impartiality. Section III raises a number of questions about the legal framework the Commission applied. Finally, Section IV asks whether, in light of the law it applied and the facts that it found, the Commission’s legal conclusions withstand analysis.

The chapter concludes — oversimplifying a bit — that the the Libya Commission was independent and impartial, generally got the law right (with some significant exceptions), and produced a wealth of useful evidence of international-law violations by the Qadhafi government and by the thuwar.  But it also argues that, perhaps unsurprisingly, the Commission exhibited an unfortunate tendency to downplay violations committed by the thuwar and by NATO.

As always, comments most welcome!

Of all my writing, my article on the relationship between national due process and the Rome Statute’s principle of complementarity is almost certainly the most unpopular. (Except in the OTP.)  My thesis is a simple one: the failure of a national investigation or prosecution to live up to international standards of due process does not make a case admissible before the ICC.  Indeed, the drafters of the Rome Statute specifically rejected a proposed version of Article 17 (by Italy) that would have permitted the Court to consider whether “the said investigations or proceedings… were or are conducted with full respect for the fundamental rights of the accused.”  States simply did not want the ICC to function as a supranational court of human rights, imposing its own practices and procedures on national criminal-justice systems.  Ensuring that national systems lived up to international standards, they believed, was the responsibility of human-rights bodies like the Human Rights Council, not the Court’s judges.

I remain convinced that my thesis is correct.  Scholars have tried to get around it, normally by arguing that Article 17(2)’s reference to “the principles of due process recognized by international law” undermines it or that Article 17(2)(c)’s expression “bring the person concerned to justice” includes a due process requirement.  I deal with both in the article.  The first argument takes the language in question out of context, because all of the grounds for holding a case inadmissible under Article 17(2) require the national deficiency in question to make it more difficult to convict a defendant.  The second argument is acontextual and is contradicted by the clear intent of the drafters.  (It is also a strained “plain reading” of the text.  When the U.S. Marshal in a Western tells his deputies to bring the bad guy to justice, no one thinks he is actually instructing his deputies to ensure that the bad guy has a good lawyer.)

So does that mean a national criminal-justice system’s failure to provide a defendant with due process can never make a case admissible?  I’ve been thinking about the issue again lately, because of Libya’s treatment of Saif Gaddafi.  To be honest, I never imagined that a state would so blatantly deny due process to a suspect wanted by by the ICC.  I expected that states in Libya’s situation would at least pretend to treat the suspect fairly.  And what I have realized is that although my thesis is correct, it ignores a potentially very important situation: where deficiencies in a national investigation or prosecution makes it more difficult to convict a suspect because the state’s own criminal-justice system requires due process.  If a state’s code of criminal procedure authorizes the judiciary to dismiss charges against a suspect on the ground that the executive has denied the suspect rights guaranteed to him under national law, the executive’s failure to provide the suspect with those rights means that the state is, in fact, conducting the proceedings in a manner “inconsistent with an intent to bring the person concerned to justice.”  Intentionally or not, the state is making it more difficult to convict the suspect — and that is all that Article 17(2)(c) requires for the Court to find a case admissible.

Before turning to Libya and the OPCD’s response, let me illustrate the difference between this situation and the situation that Article 17 forecloses…

The OPCD has filed its formal response to Libya’s admissibility challenge.  It’s a monster of a brief — 92 pages — so it will take a number of posts to deal with it adequately.  In this first post, I want to pull together the various sections of the brief that provide unprecedented detail concerning Melinda Taylor’s detention.  Before I do, though, I just want to say how lucky the ICC is to have professionals like Melinda Taylor and her detained colleagues (and their boss, Xavier-Jean Keita) working for it.  They are a credit to their profession, to the Court, and to international criminal justice in general.  They make me very proud to have spent the majority of my career working to protect the rights of criminal defendants.

Now, Taylor’s detention.  It’s a sordid tale — and one that makes the ICC’s ill-advised and counterproductive apology to Libya seem even more ill-advised and counterproductive. First, some background to the OPCD’s appointment:

249. On 6 December 2012, the Pre-Trial Chamber appointed the OPCD to represent the interests of Mr. Gaddafi in the proceedings before the ICC. In January 2012, the OPCD liaised with the Libyan authorities in order to establish contact with Mr. Gaddafi with a view to advising him on his rights before the ICC.

250. The Prosecutor-General refused to conduct communications with the OPCD by telephone or to confirm by facsimile whether it would be possible for the OPCD tvisit Mr. Gaddafi.  The OPCD was eventually instructed to Uaise with Dr. Gehani. Dr. Gehani informed the OPCD that it would not be feasible for the OPCD to communicate with Mr. Gaddafi due to the fact that Mr. Gaddafi had refused to see any ICC officials.

251. On 19 January 2012, the OPCD requested Dr. Gehani to convey a letter to Mr. Gaddafi, explaining the appointment and mandate of the OPCD, so that Mr. Gaddafi could make an informed decision regarding a potential visit. It is, however, apparent that Dr. Gehani failed to convey this letter to Mr. Gaddafi.

252. On 23 January 2012, the Libyan authorities averred to the Pre-Trial Chamber that Mr. Gaddafi had apparently refused to receive visits from a local or international lawyer, or from any ICC officials.

253. Pursuant to an order of the Chamber, the Libyan authorities arranged for representatives of the Registrar and the OPCD to meet with Mr. Gaddafi on 2 March 2012, that is 1 month after the Chamber had ordered that the visit be implemented ‘as soon as possible’.

The OPCD initially met with Saif on March 3. As that meeting made clear, the Libyan authorities had blatantly lied to the ICC from the beginning about Saif’s desires…

[Annie Gell is the Leonard H. Sandler fellow in the International Justice Program at Human Rights Watch]

Yesterday, Human Rights Watch released the report “Even a ‘Big Man’ Must Face Justice”: Lessons from the Trial of Charles Taylor. It examines the conduct of Taylor’s trial at the Special Court for Sierra Leone (“SCSL”), the court’s efforts to make its proceedings accessible to affected communities, and perceptions and initial impact of the trial in Sierra Leone and Liberia.

The aim of the report is to draw lessons to promote the best possible trials of high-level suspects who are implicated in genocide, war crimes, and crimes against humanity. It is based on interviews in The Hague, London, Washington, DC, New York, Sierra Leone, and Liberia, as well as review of expert commentary, trial transcripts, and daily reports produced by trial observers.

This post focuses on Human Rights Watch’s analysis of the trial’s conduct and lessons learned for future proceedings.

(more…)

According to the Washington Post, Phakiso Mochochoko, the head of the Jurisdiction, Complementarity and Cooperation Division in the Office of the Prosecutor at the ICC, said the following in response to Stephen Rapp’s recent comments about the potential criminal liability of the Rwandan government for its support of Bosco Ntaganda’s M23 in the Congo (emphasis added):

The International Criminal Court is not investigating Rwanda’s alleged support of a rebel group committing atrocities in the Congo, a court official said Thursday.

The court’s focus is on the arrest of the rebel leader Bosco Ntaganda of the M23 rebel group, said Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC (emphasis mine).

The International Criminal Court is not investigating Rwanda’s alleged support of a rebel group committing atrocities in the Congo, a court official said Thursday.

The court’s focus is on the arrest of the rebel leader Bosco Ntaganda of the M23 rebel group, said Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC.

“We are not in any way looking at Rwanda and in addition to that Rwanda is not even a state party to the ICC,” Mochochoko said.

What?  According to the UN, the Kagame government has supported M23 in the Congo by providing it with both weapons and troops.  If those actions amount to aiding-and-abetting, the Kagame government is responsible for crimes committed in the Congo, which is a state party to the Rome Statute.  And that means the ICC would have jurisdiction over Kagame and any other responsible government official pursuant to Article 12(2)(a) of the Rome Statute, which provides, in relevant part, that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3… [t]he State on the territory of which the conduct in question occurred.”  The fact that Kagame and the other officials might have been physically located in Rwanda when they gave the orders that led to the troops and weapons being sent to the Congo is irrelevant.  Because aiding and abetting is a mode of participation and not a substantive crime (a critical distinction; see this representative U.S. case), the crimes for which they may be responsible were committed in Congo, not in Rwanda.  And that is all the Rome Statute requires.

Although clearly a step up from its genocidal predecessor, Kagame’s government in Rwanda is anything but progressive. According to the State Department, the government is responsible for — inter alia — illegal detention, torture, enforced disappearance, attempted assassinations of political opponents, restrictions on the freedom of speech and press, violence toward journalists and human rights advocates, discrimination against women/children/gays and lesbians, trafficking in persons, restrictions on labor rights, and use of child labor.  The West has nevertheless generally preferred to ignore Kagame’s horrible human rights record, focusing instead on Rwanda’s supposed “economic miracle” since he took power (which, not coincidentally, has involved unprecedented friendliness toward Western multinationals.)

That said, I think the honeymoon is finally over.  As the Guardian reports, Kagame’s longstanding — and remarkably flagrant — support for Bosco Ntaganda’s M23 rebel group in the Congo seems to have caught up with him…

This may be a bit inside baseball for most, but the Pre-Trial Chamber issued an interesting decision yesterday regarding the Office of Public Counsel for the Defence’s formal response to Libya’s admissibility challenge.  According to the PTC, the OPCD wanted some of the information contained in its response to remain confidential not only in perpetuity, but also ex parte.  In other words, the OPCD wanted the PTC to rely on that information but not disclose it to either Libya or the OTP.  Presumably, the information in question relates to Melinda Taylor’s detention in Libya; when I found the decision, I was just about to write a short post wondering what had happened to Taylor’s report, which she had promised to file with the court nearly 10 days ago.

In any case, the PTC rejected the OPCD’s request:

10.    Having reviewed the Request, the Chamber is of the view that the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.

This is clearly the correct decision.  No matter how sensitive the information may be, the PTC cannot take it into account unless Libya and the OTP have the opportunity to respond to it.  That’s the nature of the adversarial process.

The PTC ordered the OPCD to file its response by July 24 and to rely solely on information that could be disclosed to Libya and the OTP.  Alas, that probably means some of the information will be redacted in the Court’s public documents.  We’ll have to wait and see.

It looks increasingly likely.  Mali has formally self-referred the situation in the country to the ICC and the OTP has already opened a formal preliminary investigation.  Here is yesterday’s statement from Fatou Bensouda:

Today I received a delegation from the Government of Mali led by the Minister of Justice, H.E. Malick Coulibaly. The delegation transmitted a letter by which the Government of Mali, as a State Party to the ICC, refers “the situation in Mali since January 2012” to my Office and requests an investigation to determine whether one or more persons should be charged for crimes committed. The Government of Mali submits that the Malian courts are unable to prosecute or try the perpetrators. The Malian delegation also provided documentation in support of the referral.

[snip]

My Office has been following the situation in Mali very closely since violence erupted there around 17 January 2012. On 24 April, as instances of killings, abductions, rapes and conscription of children were reported by several sources, I reminded all actors of ICC jurisdiction over Rome Statute crimes committed on the territory of Mali or by Malian nationals. On 1 July, I stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute.

I have instructed my Office to immediately proceed with a preliminary examination of the situation in order to assess whether the Rome Statute criteria stipulated under Article 53.1 for opening an investigation are fulfilled. I will make a public decision in due course.

It is not difficult to understand the OTP’s temptation to open an investigation — as this BBC article summarizes, Northern Mali is essentially under the control of rebels that have links to al-Qaeda, murder and rape are endemic, beloved historical sites in Timbuktu are being intentionally destroyed, and hundreds of thousands of civilians have been displaced by the conflict.  That said, I think there are at least four reasons to question the wisdom of the ICC getting involved…

Thomas Lubanga Dyilo, the first person convicted at the ICC, has been sentenced to fourteen years in prison.  From the Court’s press release:

Today, Trial Chamber I of the International Criminal Court (ICC) sentenced Thomas Lubanga Dyilo to a total period of 14 years of imprisonment. The Chamber, composed of Judge Adrian Fulford, Judge Elizabeth Odio Benito and Judge René Blattmann, also ordered that the time from Mr Lubanga’s surrender to the ICC on 16 March 2006 until today should be deducted from this sentence. Mr Lubanga Dyilo was found guilty, on 14 March 2012, of conscripting and enlisting children under the age of 15 and using them to participate in hostilities in the Ituri region in the Democratic Republic of the Congo, from 1 September 2002 to 13 August 2003.

Readers can find an excellent summary of the decision at IntLawGrrls here.  Fourteen years seems about right given the relatively unserious nature of the war-crimes charges against Lubanga (compared to things like murder and rape), although the sentence no doubt comes as a disappointment to the OTP, which asked for 30 years.  Lubanga’s six-year incarceration means that he will be a free man at a relatively young age; in fact, pursuant to Article 110(3) of the Rome Statute, the Court will review his sentence for possible reduction in just five years.

Scholars and NGOs have consistently criticized Moreno-Ocampo for not charging Lubanga with more serious crimes.  Indeed, because Lubanga was facing much more serious charges in the DRC — genocide and crimes against humanity, including murder — I cite his case in a recent article as a primary example of why the ICC’s “same conduct” test for complementarity is counterproductive.  The traditional defense of Moreno-Ocampo’s decision was that the conscription and enlistment charges were relatively easy to prove, making it likely that the trial would result in a quick and unproblematic conviction.  As regular readers know, reality proved to be far messier (see, for example, here and here).

I wonder whether Moreno-Ocampo is regretting his decision not to pursue more serious charges…

Not surprisingly, Taylor insists that she did nothing wrong — and that Saif Gaddafi cannot possibly get a fair trial in Libya.  First, regarding the so-called “coded letter,” which has always been the most bizarre Libyan allegation:

AUSTRALIAN lawyer Melinda Taylor says documents considered “coded” by Libyan authorities who jailed her were simply innocent doodles.

[snip]

After her release on Monday, Ms Taylor went straight back to work, emerging on Friday to declare in the Netherlands that her actions in Libya were consistent with legal obligations under court rules.

Ms Taylor said the papers she had were legal documents and the alleged codes were innocent items, including Gaddafi’s nickname, which could be found by keying it in to an internet search engine.

Second, concerning the Libyan’s blatant breach of attorney-client privilege:

“Irrespective of any issues concerning my own personal conduct, the rights of my client, Mr Seif al-Islam, were irrevocably prejudiced during my visit to Zintan,” she said.

“It is the position of the defence that these recent events have completely underscored that it will be impossible for Mr Gaddafi to be tried in an independent and impartial manner in Libyan courts.”

Ms Taylor said that during her detention, she was never given a decision on the legal basis for her arrest or for the search and seizure of privileged documents.

“Amongst other things, the Libyan authorities deliberately mislead the defence concerning whether the visit with Mr Gaddafi would be monitored,” she said.

She said authorities also “seized documents which were covered by legal professional privilege and ICC protective orders”.

Taylor says she will file a complete written report with the Court by next Wednesday, so I will delay substantive analysis until then.  But her initial report is certainly unsettling.  I don’t know what’s worse, Libya’s willingness to surreptitiously monitor attorney-client meetings or its inability to distinguish doodles from code.

I will be interested to see if Taylor comments on the ICC’s apology for her actions.  The Australian media is already in full-on hagiography mode, publishing articles that explain how Bob Carr swooped in on his white horse and saved Taylor from a life of detention and hard labor.

Now that Taylor is finally free, we can turn our attention again to the ongoing saga of who is going to prosecute Saif Gaddafi — Libya or the ICC.  A recent article in the Independent indicates that the correct answer may well be “neither”:

Ms Taylor said she was “very happy” to be able to return to her family. The proceedings on a hot and dusty afternoon also reinforced, however, the image of power the Republic of Zintan has projected since the overthrow of Muammar Gaddafi.

Ms Taylor had been guilty of trying to smuggle incriminating documents and a camera to Saif al-Islam, according to Alejmi Al-Atari, the militia chief who captured him. Commander Al-Atari also stressed later that the fallen dictator’s son will not be transferred to the government in Tripoli, let alone the ICC in The Hague. “He will be tried here, in Zintan for crimes, for all his oppression. Zintan can take care of justice for the Libyan people.”

Until recently, the Zintan battalions, which have more than 15,000 men under arms, “took care” of the capital’s airport, which is steadily opening up to foreign and domestic flights and becoming the main transport hub of the country. It is nominally now under the control of the Tripoli administration, but the Zintani presence is still very much there to see.

I’m not sure how a non-state actor holds a credible trial of Saif.  But it’s clear that, at least for the foreseeable future, Libya as a state remains “unable” to prosecute Saif for purposes of its admissibility challenge.  The Pre-Trial Chamber should thus reject that challenge until the Libyan government demonstrates that it has control over Saif.

I have to admit, I’ve been very surprised by the negative reactions I’ve received concerning my belief that the ICC should not have expressed regret or apologized to Libya for Melinda Taylor’s (alleged) misconduct.  It seems that most people — or at least most of the people who have emailed me — think that the Court should have done anything it could to get her back, even if its actions mean that defence attorneys will find it far more difficult to effectively represent their clients in the future.

I certainly understand the sentiment.  I am delighted that Taylor is free.  But I continue to believe that the statement and the apology were a mistake — and that the ICC’s willingness to bend over backwards to placate the Libyans was a reflection of defence attorneys’ second-class status at the Court and in international criminal law more generally.  Let’s not forget what the Court said in its original statement, which was supposedly about the need to free Taylor: “[t]he President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.”  The message was clear: it’s not nice to detain defence attorneys, but failing to prosecute suspects is even worse.

As I noted in an earlier post, I don’t expect people who have no experience with criminal defence to understand just how damaging the ICC’s actions have been.  So let’s turn the situation around and imagine a scenario that is all too possible — the detention of a prosecutor by a state being investigated for serious crimes:

High-ranking government officials in Rantania are widely believed to have orchestrated a genocidal campaign against an indigenous tribe suspected of supporting a rebel group funded by Aprophe, Rantania’s neighbor.  In early 2013, the Security Council refers the situation in Rantania to the ICC.  As part of the  Office of the Prosecutor’s investigation into the situation, a young prosecutor, Alexandra Evans, travels to Rantania on a fact-finding mission — talking to local human-rights NGOs, interviewing victims, and meeting with government officials.  After implying a bit too strongly that a particular government official was involved in the genocide, Evans is detained by the Rantanian intelligence service and her bag searched. Intelligence officers discover a list of suspects provided to her in confidence (and anonymously) by one of the human-rights NGOs.  Evans is promptly charged with espionage on the ground that the “accusations” on the list are an attempt by Evans and the NGO to subvert the lawful government of Rantania.  She is imprisoned and repeatedly interrogated concerning the identity of the NGO that gave her the list.

How would the ICC respond to such a situation?  Would the Court weakly assert that Evans was entitled to complete immunity from detention, search, and prosecution?  Would the Court quickly issue a statement expressing its “deep regret concerning any events that may have given rise to concerns on the part of the Rantanian authorities” and insist that the Court “has no intention of doing anything that would undermine Rantanian national security”?  When Rantanian government officials visited the Court to discuss Evans’ detention, would the Court “express its appreciation for the mutual trust confirmed in the meetings” and “welcome Rantania’s commitment to cooperate fully with the Court in accordance with the Security Council referral”?  Would the Court insist that it “takes very seriously the information reported by the Rantanian authorities,” “understands the importance of the espionage allegations to the government,” and “attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws”?  Would the Court promise to “remain in close contact with the Rantanian authorities to inform them” of any progress it makes in its internal investigation of their espionage allegations?  And once Rantania finally agreed — after nearly a month — to release Evans, would the President of the Court travel to Rantania to apologize in person for Evans’ actions?

Unless you can answer each and every question with a resounding “yes,” the conclusion is inescapable: the ICC’s willingness to appease Libya is due, at least in part, to the fact that Melinda Taylor is a defense attorney, not a prosecutor.