Legal scholars are fiercely debating the International Criminal Court’s (ICC) intervention in Libya. The high level of attention to the ICC’s involvement is natural given that it raises a number of important questions, both with respect to the interpretation of core provisions in the Rome Statute and the geopolitics surrounding the operations of the ICC.

The international community’s responses to atrocities in Libya

Though the ICC’s intervention was based on a UN Security Council (UNSC) referral, the UNSC has since largely abandoned the process of seeking international justice for the crimes committed during the country’s civil war. The UNSC and its permanent members have failed to put pressure on the new rulers in Libya to cooperate with the Court – as demanded in the UNSC resolution that confers the Court’s jurisdiction – and surrender the suspects, as ordered by the Court. Permanent members of the UNSC, including the US and the UK, seem content to let the new Libyan government deal with members of the ousted regime – including the son of Muammar Gaddafi, Saif al-Islam Gaddafi, and former head of the Libya’s intelligence services, Abdullah al-Senussi, against whom the ICC issued arrest warrants in June 2011.

As Geoffrey Robertson notes, the UNSC and its permanent members did “absolutely nothing” to support the transfer of al-Senussi from Mauritania to The Hague when the spy-master was in custody there. Instead, he was eventually handed over to the Libyan authorities, who reportedly paid a considerable sum to Mauritania. Indicating disregard for international law and the ICC more specifically, Libya detained the ICC appointed legal counsel for Saif al-Islam upon her visit to Zintan, where he remains detained, thus violating the immunity of ICC staff. The Libyans claimed the legal counsel was “spying”, though no credible evidence to support this claim has been presented. Rather than sanctioning Libya for this, the international community, including the UNSC and organs of the Court itself, showed a level of disinterest which has puzzled observers.

The admissibility challenge and the possibility of a fair trial in Libya

Libyan government officials have stated that no amount of pressure will push Libya to surrender Saif al-Islam or al-Senussi to the ICC. Nonetheless, the new rulers in Tripoli are using the legal remedies established within the Rome Statute to obtain an authorization for ending ICC proceedings and instead prosecute the two ICC suspects in national courts. Advancing the battle over the fate of Saif al-Islam and al-Senussi, the Libyan government filed an admissibility challenge with the ICC on 1 May 2012. The admissibility challenge states that Libya’s “national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts of murder and persecution”, and consequently claims that the complementarity scheme in Article 17 of the Rome Statute renders the cases inadmissible before the ICC.

The ongoing national proceedings, it is claimed, reflect “a genuine willingness and ability to bring the persons concerned to justice in furtherance of building a new and democratic Libya governed by the rule of law”, and “[to] deny the Libyan people this historic opportunity to eradicate the long-standing culture of impunity would be manifestly inconsistent with the object and purpose of the Rome Statute, which accords primacy to national judicial systems”. In fact, the Libyan government states, “denying the Libyan State and its people the opportunity to carry out national proceedings, in accordance with all the procedural safeguards and protections afforded by Libyan law, would likely mean that no State emerging from conflict could ever benefit from the complementarity principle”.

Further, Libya’s admissibility challenge states that the national courts now operate in an independent manner and that international due process standards are fully respected. Indeed, Libya claims, the “suspects and defendants within the Libyan criminal justice system benefit from similar procedural rights and protections to those set out in the Rome Statute,” and “the Libyan Government is committed to meeting all the fair trial requirements set out in these instruments, including in particular Articles 9 and 10 of the ICCPR”. Specifically with respect to the two ICC suspects, the Libyan government states that it has no intention of holding “a rushed trial of these two persons that would not meet international minimum standards of due process”, but “is committed to attaining the highest international standards both for the conduct of its investigations and any eventual trials”.

However, while few question the Libya intents to hold the two suspects to account for their alleged crimes, most commentators doubt that they will receive anything that comes close to a fair trial. Amnesty International notes that the suspects and perceived loyalists of the former government “face a real risk of torture or other ill-treatment in custody”, and further expresses concern that the thousands of alleged Gaddafi soldiers and loyalists who are detained in Libya without charge or trial are often forced to make “confessions”. Of course, there is also the issue that supporters of the prior regime risk capital punishment, a penalty not used by the ICC and prohibited in various human rights instruments. Quite simply, as Geoffrey Robertson explains, there can be little doubt that Saif al-Islam and al-Senussi will “receive not justice, but revenge.”

Are standards of due process relevant in determining an admissibility challenge?

The relevant provision in the Rome Statute concerning the basis for deciding on an admissibility challenge is Article 17, which is appended in full below this article here.

According to Jonathan O’Donohue and Sophie Rigney: “The plain meaning of the rule of complementarity spelled out in Article 17 of the Rome Statute; the interpretative provisions in Article 21 (3); and a teleological approach confirm that, if the judges are not satisfied that the rights of the accused will be respected in national criminal proceedings, the case will be admissible and the application must be rejected.” This perception – that due process in national proceedings generally constitute a relevant factor in the assessment of complementarity under Article 17 of the Rome Statute – is supported by most commentaries on the provision.

In contrast, senior lecturer at Melbourne Law School Kevin Jon Heller has argued that the Rome Statute does not allow the Court to take into consideration the level of compliance with due process when considering an admissibility challenge. Heller explains: “the basic principles of treaty interpretation all clearly indicate that a State’s failure to guarantee a defendant due process is not currently a ground for admissibility.” According to Heller’s interpretation, Article 17 permits the Court to find a State unwilling or unable only if its legal proceedings are designed to make a defendant more difficult to convict, not if the proceedings make it easier to obtain a conviction, which would typically be the case where due process standards are fundamentally violated.

Notwithstanding that the Libyan government offered a detailed description of how the national judicial system is respectful of fair trial standards, in its admissibility challenge the government also stated that 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.” Interestingly, the ICC Prosecutor expressed sympathy for Libya’s quest to have the case determined inadmissible before the ICC and noted the general irrelevance of due process concerns in the determination of admissibility. Relying heavily on Heller’s 2006 Criminal Law Forum Article, the Prosecutor endorsed the perception that “the Court cannot find a State unwilling on the sole ground that the national proceedings violate due process”. In contrast, the ICC appointed defense counsel for Saif al-Islam detailed the violations committed against Saif al-Islam and argued that such violations of due process standards must lead Libya to immediately surrender Saif al-Islam to the ICC. A bit simplified, the ICC Prosecutor wants to make friends with the new rulers in Libya, while Saif al-Islam begs to be transferred to The Hague as his destiny in Libya already seems determined.

Revisiting the due process thesis

The existing scholarly debate about the relevance of due process considerations – which, as noted above, has clearly informed the petitions in connection to Libya’s admissibility challenge – misses important points.

Heller is right in stating that although the chapeau of Article 17(2) mentions “the principles of due process recognized by international law”, this does not provide an independent ground for regularly rejecting admissibility challenges in situations where a national process does not fully respect these principles. However, Heller’s argument misses the point that national proceedings can be so flawed that they no longer reflect an intention “to bring the person concerned to justice”. The chapeau of Article 17(2) informs the manner in which the sub-clause in Article 17(2)(c) should be approached and thus how we should understand the terms "conducted independently or impartially" and "inconsistent with an intent to bring the person concerned to justice". In other words, the ordinary meaning of the term “bring to justice” implies something more than mere conviction, an interpretation which is further supported by the reference to due process standards in the chapeau of Article 17(2).

Further, if a state neither has the capacity nor – and perhaps more importantly – the will to ensure respect for the basic principles of a fair trial, such as access to defense counsel and respect for the prohibition of forced confessions, the ICC would clearly defy the purpose of the Rome Statute by ruling that a case is nonetheless inadmissible and allowing national courts to move ahead. After all, the Rome Statute aims to promote the rule of law and deliver justice, not injustice, for serious crimes. Accordingly, while the quality of national proceedings cannot under ordinary circumstances constitute a decisive factor in the context of an admissibility challenge, to the extent national proceedings contravene – or are likely to contravene – the very notion of justice itself, it would defy the object and the purpose of the Rome Statute to allow national authorities to take over the proceedings.

This argument is only stronger in cases where the ICC has already issued arrest warrants and requested that the suspects be surrendered to the Court. Arguably, ruling favorably on an admissibility challenge in such a situation would amount to a “transfer” of the suspect – whether or not the suspect is actually in the custody of the Court – which in itself could violate international human rights law if the suspect is likely to face torture. Doing so would therefore also contravene Article 21(3) of the Statute, which states that the Court’s application and interpretation of law must be consistent with internationally recognized human rights. The general relevance of human rights standards for the interpretation of the Rome Statute has also been noted in the case law of the Court. In The Prosecutor v. Lubanga, the Appeals Chamber stated: “Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court. Its provisions must be interpreted and more importantly applied in accordance with internationally recognized human rights; first and foremost, in the context of the Statute, the right to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety.”

Finally, the preparatory work of the treaty and the circumstances of its conclusion offer a supplementary means of interpreting the Rome Statute, including the provisions relating to complementarity. During the negotiations, Italy proposed a definition of unwillingness that would have specifically made the failure to fully respect due process standards a ground for admissibility. The proposal read: “In deciding on issues of admissibility under this article, the Court shall consider whether... (ii) the said investigations or proceedings have been or are impartial or independent, or were or are designed to shield the accused from international criminal responsibility, or were or are conducted with full respect for the fundamental rights of the accused.” John Holmes, who coordinated the negotiation of complementarity during the drafting of the Rome Statute, notes that the proposal was rejected because “many delegations believed that procedural fairness should not be a ground for defining complementarity.”

The rejection of this proposal supports the argument that the ICC should not operate as a human rights court which regularly takes up cases where national proceedings are not conducted in “full respect” for fair trial standards. However, it should not necessarily be seen to indicate that the drafters of the Statute viewed considerations relating to fairness as entirely irrelevant in all circumstances. Specifically, the rejection of Italy’s proposal cannot be taken to imply that the drafters believed that the Court should rule favorably on an admissibility challenge in instances where the Court is already involved and national proceedings blatantly violate the most fundamental principles of a fair trial. While an informal paper conducted by the Panel of Experts under the ICC Prosecutor notes: “it was extremely important to many states that proceedings cannot be found ‘non-genuine’ simply because of a comparative lack of resources or because of a lack of full compliance with all human rights standards,” it also stated that “human rights standards may still be of relevance and utility in assessing whether the proceedings are carried out genuinely”.

In sum, the text, context, object and drafting history of the Rome Statute make it clear that national proceedings that fail to fully respect the standards of due process do not per se make a case admissible before the ICC. However, a reasonable interpretation of the Rome Statute would suggest that once the ICC has in fact intervened and issued arrest warrants, the later initiation of national proceedings with respect to the persons indicted by the ICC, which are carried out in wholesale disregard for the standards of due process, do not render the case inadmissible before the ICC.

Why Libya’s admissibility challenge must be rejected

The main purpose of the ICC is to promote accountability for the most serious offences known to human kind, not to monitor states’ compliance with fair trial standards. For that, other bodies have been established. The complementarity principle, expressed most clearly in Article 17 of the Rome Statute, is central to the functioning of the ICC, both because it upholds respect for state sovereignty and ensures that the Court uses its limited resources on prosecuting crimes which would otherwise go unpunished. Accordingly, the starting point must be that Libya’s judicial system should be granted priority bringing to justice those responsible for the crimes committed during the country’s civil war.

However, in the case of Libya, the relevant authorities have no intention of providing the accused with even the most basic rights, including access to defense counsel, and it seems clear that a potential trial in Libya will fundamentally contravene the principles of fair justice. Put otherwise, Libya does not intent to bring the ICC suspects to “justice”, but rather to have them executed following some summary process, possibly after mistreating them with the purpose of accessing the secrets of Muammar Gaddafi’s brutal regime, or simply as an act of revenge.

Taking into account that the ICC has already issued arrest warrants and requests for surrender with respect to Saif al-Islam and al-Senussi, should the Court chose to act favorably on Libya’s admissibility challenge this would defy the purpose of the Statute and send the signal that the ICC is not committed to upholding the rule of law, including basic rights of the accused.

In part due to the absence of international pressure, there are no reasons to believe that Libya will comply with a ruling which rejects the admissibility challenge. In all probability, this renders the ICC’s decision essentially symbolic. But symbols can be important, especially for a court that is yet to obtain widespread acceptance among its key audiences. Accordingly, the ICC must show its respect for the rule of law, including fundamental norms accepted by the community of nations relating to the rights of the accused. Doing so requires that the ICC sends the message that Libya’s quest to seek revenge in total disregard of fair trial standards is unacceptable and will not be endorsed by the Court. If not, the ICC could be seen to be complicit in what awaits Saif al-Islam and al-Senussi in Libya.

Appendix

Article 17 of the Rome Statute [back to article]

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c)The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.