Libya Challenges the Admissibility of the Cases Against Gaddafi and Al-Senussi

Libya has now brought a formal admissibility challenge under Article 19 of the Rome Statute.  The motion, written by Philippe Sands, Payam Akhavan, and Michelle Butler, is a brilliant piece of work and stands a good chance of success.  I’ll have much to say about the motion in the next few days, but in this post I want to focus on two aspects of it that I think work at cross-purposes: (1) its insistence that the absence of due process in a national proceeding does not make a case admissible before the ICC; and (2) its quite savage attack on the integrity of the Office of Public Counsel for the Defence.

To begin with, I was surprised — and more than a little pleased — to see that the motion basically argues that Article 17 of the Rome Statute does not make the absence of national due process a ground for admissibility:

99. As noted by highly qualified publicists, “there is a danger that the provisions of Article 17 will become a tool for overly harsh assessments of the judicial machinery in developing countries.” It is not the function of the ICC to hold Libya’s national legal system against an exacting and elaborate standard beyond that basically required for a fair trial.  As other distinguished commentators (including drafters of the Rome Statute) have noted generally in regard to due process considerations,

“Arguments have been made that the Court is thus given a general role in monitoring the human rights standards of domestic authorities. The better view is that delay and lack of independence are relevant only in so far as either of them indicates an intention to shield the person concerned from justice. There does not appear to be anything in the Statute to make the Court responsible for the protection of the human rights of the accused in the national enforcement of international criminal law; the principle of complementarity addresses the particular aspects of the proceedings which are referred to in Article 17, whereas more general human rights considerations about the conduct of national prosecutions are more properly addressed by human rights treaties and bodies.”

As I have explained at length elsewhere, this is absolutely correct  The delegates to the Rome Conference specifically drafted Article 17 of the Rome Statute to prevent the Court from admitting a case solely on the ground that the national prosecution would be unfair.  Indeed, they 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.”  We can certainly lament that limitation, and I criticize it in my article.  But the proper remedy is to amend the Rome Statute, not for the Pre-Trial Chamber to rewrite Article 17 sub silentio.

The authors of the motion are clearly aware that it is not popular to insist that due process is irrelevant to admissibility.  I’m sure that’s why the motion spends a significant number of pages (pp. 29-35) extolling the fairness of the Libyan criminal-justice system. I certainly understand that choice — it is difficult to openly defend a state’s right to hold unfair trials, even if that position is legally correct.  But I also think the motion risks opening a Pandora’s box that the Libyan government doesn’t really want opened.  I don’t know many people who work in ICL who actually believe that Libya intends to give Saif and Al-Senussi trials that comport with international standards of due process, regardless of its protestations to the contrary.  And I don’t think the formal adequacy of Libya’s criminal-justice system, which is all that the motion emphasizes, counteracts that skepticism.  Sadly, as all criminal lawyers know, the statutory and constitutional right to a fair trial does not guarantee that a defendant will actually receive a fair trial.  Will Libya be different?  I doubt it, and I’m confident that the ICC’s judges will doubt it, as well.  After all, it wasn’t so long ago that Iraq guaranteed it would give Saddam Hussein a fair trial and defended that guarantee by pointing to the (ostensible) formal adequacy of the law and procedure governing the Iraqi High Tribunal.  And we all know how that trial turned out.

In the same vein, I think the motion makes a very serious mistake when it so savagely attacks the OPCD’s report on Saif’s conditions of confinement.  Here are the relevant paragraphs (emphasis mine):

28. On 2 and 5 March 2012, the OPCD filed confidential reports concerning this visit. In these reports the OPCD made various unwarranted allegations against the Libyan Government in respect of the alleged poor treatment of Mr Gaddafi and its purported intention to charge him only with offences relating to camel licensing and the cleanliness of fish farms owned by Mr Gaddafi. As these allegations were made without any attempt to check their accuracy with the Libyan Government, and as they were filed with the Court confidentially, the Libyan Government did not become aware of them until public and redacted versions of the reports were filed on 4 and 10 April respectively.

38. As the events outlined above demonstrate, this admissibility challenge has been prepared by a State which has only recently emerged from armed conflict, mass-atrocities, and a complete change of government after a period of forty-two years of dictatorship. It is particularly unfortunate that it brings its Article 19 application in the context of unverified and unwarranted allegations of bad faith made by the OPCD, an organ of the Court. The Libyan Government trusts that the Pre-Trial Chamber will not allow such baseless allegations to prejudice Libya’s Article 19 application. Stigmatizing a Government on the basis of unfair and untrue allegations when it is both willing and able to eradicate impunity would seriously undermine the principle of complementarity upon which the Court is founded.

94. The inappropriate and unsubstantiated allegations by the OPCD against Libya in this regard have been prejudicial and contradictory. On the one hand.there are allegations that Mr. Gaddafi stands accused of trivial regulatory offences relating to the licensing of camels and fish farms, suggesting that he is being shielded from justice. On the other hand, there are allegations of physical abuse and a rushed trial in violation of intemational standards of due process. These allegations are irresponsible and patently false. No evidence has been tendered to support them. Amidst the chaos prevailing in the immediate aftermath of the Muammar Gaddafi regime’s overthrow, the NTC and local authorities in Zintan have gone to extraordinary lengths to protect Mr. Gaddafi against vigilante violence, given the strong feelings among some sections of the population regarding his alleged role in mass-atrocities.

Regardless of whether the allegations are correct, these paragraphs never should have been included in the motion.  The paragraphs do nothing to advance the admissibility challenge (because, as the motion itself points out, the absence of due process is irrelevant) and everything to undermine it.  Who should an outside observer believe concerning Saif’s treatment, the OPCD or the Libyan government?  The OPCD is an official organ of the Court whose primary responsibility is “[r]epresenting and protecting the rights of the defence during the initial stages of an investigation.”  It has no apparent reason to lie about the conditions of Saif’s confinement, and the motion identifies none.  By contrast, the Libyan government has every reason to lie about those conditions — not least because it is currently trying to convince the ICC that it should be allowed to prosecute Saif itself.  As for the OPCD’s allegations being “unsubstantiated,” whose fault is that?  Certainly not the OPCD’s, which wanted to conduct a much more thorough investigation.  There is one reason and one reason only that it was not able to do so: the Libyan government wouldn’t let it.  And now the Libyan government wants the cursory nature of the OPCD’s investigation to count against its conclusions?  That’s hardly convincing.

It is also important to note that there is reason to be skeptical of the Libyan government’s insistence that it is not mistreating Saif.  After all, not too long ago the government officials were anti-Gaddafi rebels who, according to the International Commission of Inquiry on Libya, were more than willing to commit international crimes in service of their cause.  Here is the third paragraph from the summary section of the Commission of Inquiry’s most recent report:

The Commission further concluded that the thuwar (anti-Qadhafi forces) committed serious violations, including war crimes and breaches of international human rights law, the latter continuing at the time of the present report. The Commission found these violations to include unlawful killing, arbitrary arrest, torture, enforced disappearance, indiscriminate attacks, and pillage. It found in particular that the thuwar are targeting the Tawergha and other communities.

The bottom line: in my view, the motion makes a serious tactical mistake when it attacks the integrity of the OPCD, especially in the context of an attempt to convince the Pre-Trial Chamber to hold Saif and Al-Senussi’s cases inadmissible.  We are all Legal Realists now: although the absence of due process is not legally relevant to Libya’s admissibility challenge, that absence cannot help but weigh on the minds of the judges when considering the challenge.  I think there is a serious risk that the judges will conclude that a government that is willing to make inflammatory allegations against an organ of the Court is hardly the kind of government that deserves the benefit of the doubt when it comes to difficult factual determinations — such as whether a national investigation is really “genuine.”