It’s Time to Reconsider the Al-Senussi Case. (But How?)

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — recent events in Libya have obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot. Here is the text of Art. 19(4):

The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1(c).

This is a poorly written provision, as al-Senussi’s situation puts in stark relief. The admissibility of the case was initially challenged by Libya, not by al-Senussi. So he would seem to have the right to bring his own admissibility challenge. But here’s the first problem: sentence 1 permits a person or a state to challenge admissibility; it says nothing about challenging inadmissibility — which is what al-Senussi would want to do.

To be sure, it’s possible to read “admissibility” more generally, as encompassing any challenge involving the admissibility or inadmissibility of a case. That’s probably the better reading, given that the drafters of the Rome Statute could easily have imagined a situation in which a suspect would prefer to be prosecuted by an international tribunal than by a domestic court. (That was certainly the situation at the ICTR.)

But then there’s the issue of timing. Sentence 2 says the (in)admissibility challenge “shall take place prior to or at the commencement of the trial,” while sentence 4 limits later challenges — which are only permitted in exceptional circumstances (sentence 3) — to those based on Art. 17(1)(c) of the Rome Statute, which is a ne bis in idem provision that prevents the Court from prosecuting a suspect who “has already been tried for conduct which is the subject of the complaint.” Would an (in)admissibility challenge by al-Senussi take place after “the commencement of the trial”? The answer depends on what “the trial” is. If sentence 2 refers only to trial by the ICC, al-Senussi’s (in)admissibility challenge would clearly take place “prior to… the commencement of the trial” and would be permitted as a matter of right. But if “the trial” refers to the domestic trial initiated after a finding of inadmissibility, al-Senussi has a problem: his trial has already started in Libya. His (in)admissibility challenge would then be subject to sentence 4 — and would be prohibited by it, because the challenge would not be based on ne bis in idem.

Here, in light of the first problem with Art. 19(4), the better reading works against al-Senussi. If “the trial” in sentence 2 refers only to trial by the ICC, it is difficult to read “admissibility” in sentence 1 as referring to both admissibility challenges and inadmissibility challenges. The point of requiring admissibility challenges be brought prior to the commencement of an ICC trial is obvious: it conserves the Court’s judicial resources in case of a finding of inadmissibility. But the same logic applies to inadmissibility challenges: requiring them to be brought prior to the commencement of a domestic trial would conserve a state’s resources in case of a finding of admissibility. So if “admissibility” in sentence 1 encompasses both admissibility and inadmissibility challenges, it makes sense to read “the trial” in sentence 2 as encompassing both ICC trials and domestic trials — requiring the admissibility/inadmissibility challenge be brought prior to the commencement of whatever trial the challenge seeks to avoid. And that, in turn, would imply that inadmissibility challenges brought after the commencement of a domestic trial could be brought only on the basis of ne bis in idem — namely, that the state was trying to prosecute a suspect that the ICC had already prosecuted.

The best reading of Art. 19(4), in short, appears to be this: (1) al-Senussi is entitled to challenge the inadmissibility of his case; but (2) because his challenge would be brought subsequent to the commencement of his domestic trial in Libya, it would have to be based on ne bis in idem. Al-Senussi would thus not be entitled to challenge the inadmissibility of his case, because he has not already been prosecuted by the Court.

I’d like to be wrong about that, and I would not complain (too much) if the Court found a way to avoid my interpretation of Art. 19(4) in light of Libya’s evident inability to effectively prosecute al-Senussi. I could also see the Court concluding that, in fact, the Libyan trial has not actually started — which would eliminate the ne bis in idem problem.

That said, the better solution remains the one that is staring us right in the face: the OTP should challenge inadmissibility on al-Senussi’s behalf.

[Note: I am an Academic Member of Doughty Street Chambers, one of whose lawyers — Amal Alamuddin — represents al-Senussi.]