Ugly Infighting at the ICC

So reports Radio Netherlands Worldwide.  The dispute, not surprisingly, involves Luis Moreno-Ocampo and Libya:

This week the court’s public defender, Xavier-Jean Keita, accused chief prosecutor Luis Moreno Ocampo of siding with the Libyans and demanded he be removed from the case.

In a court filing boiling with indignation, he accused Ocampo of making misleading statements during a visit to Tripoli this week suggesting a deal has already been done whereby Gaddafi will face trial in Tripoli.

“There appears to be a strong perception that the ICC Prosecutor has aligned himself to the interests of the Libyan authorities,” Keita wrote in a court filing. “It might also be appropriate for the ICC Prosecutor to consider recusing himself from the case.”

[snip]

Ocampo earlier had suggested to judges that, as Gaddafi had not formally requested a lawyer during a meeting in March with an ICC defence official, Keita be removed from the case.

Judges said no to that one, too, but they have still to make up their minds what to do about a case that is fast spiralling into a major political problem for the ICC.

Libya insists it is taking the court seriously and has hired Phillipe Sands, a leading British Queens Counsel and author of “Lawless World”, which accused the Bush administration of war crimes in Iraq, to make its case to the ICC.

But Libya’s chances of a successful challenge look weak. First, it will have to justify keeping Gaddafi in isolation for months, where he has been denied access to a lawyer as well as family visits.

Second, it has no functioning justice system, with the law on transitional justice still to be gazetted.

And third, Libya is showing signs of disintegration. With separatists in the east and south demanding autonomy, the powerful Zintan militias have refused to hand over Gaddafi to government custody.

Rights groups say Libya is in no position to hold a fair trial. Richard Dicker, head of international justice at Human Rights Watch in New York, told RNW: “Credibility? That’s exactly what they [Libya] won’t have with a kangaroo process in Tripoli and a quick execution. That’s an Iraqi solution.”

I don’t quite know what to make of all this.  To be honest, I think both Keita and Moreno-Ocampo are in the wrong.  Moreno-Ocampo’s criticism of Keita is obviously misplaced: there is nothing inappropriate about Keita protecting Saif’s interests at the ICC — and the Registry’s report on Saif’s situation in Libya, discussed in my previous post, makes clear that Keita is not purporting to represent his interests regarding a national prosecution, which would obviously be inappropriate.

Keita’s criticism of Moreno-Ocampo also seems misplaced — at least in the abstract.  The OTP has the right under Article 61 of the Rome Statute to withdraw the charges against Saif, because they have not yet been confirmed by the Pre-Trial Chamber.  So I don’t see what’s wrong with Moreno-Ocampo trying to work out a deal with the Libyans to prosecute Saif domestically.  The real question is what such a deal would look like — and here I definitely have my concerns.  As I noted a few days ago, if the OTP withdraws the charges against Saif as part of a deal with the Libyan government, it would suffer the reputational costs of what would almost certainly be an unfair national prosecution.  That would not be the case, however, if the OTP acceded to the wishes of the other organs of the ICC and demanded that Libya formally challenge the admissibility of a national prosecution under Articles 18 and 19 of the Rome Statute.  In the unlikely event that such a challenge succeeded, it would not be the ICC’s fault — much less the OTP’s — if Saif received an unfair trial.

That last point is an important one.  The RNW article quoted above, like so many articles (and blog posts) on the Libya situation, incorrectly presumes that the ICC would be entitled to reject an admissibility challenge on the ground that Saif would not receive a fair trial in Libya.  As I have explained before, the drafters of the Rome Statute specifically rejected the idea that the absence of due process renders a state “unwilling” or “unable” to prosecute; a state can be considered unwilling or unable only if its national prosecution is designed to make it more difficult to successfully prosecute the perpetrator.  So there is nothing wrong with the OTP ignoring fair-trial concerns in its discussions with the Libyan government — unless it cuts a deal with Libya that involves dropping the charges against Saif.  In the admissibility context, due process does not matter.  Outside of that context, it most certainly does.  The OTP has no business whatsoever negotiating away Articles 18 and 19 unless it can ensure that Saif receives a fair trial.  And therein lies the danger of Moreno-Ocampo’s negotations with the Libyan government.