The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

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Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10).

Denial of Fair Trial: An Additional Allegation Based on the Same Facts

Denial of fair trial can take two forms. In its first form, denial of fair trial occurs when victims were tried, but the proceedings were determined to be unfair. In its second form — the one that appears to be relevant here — denial of fair trial occurs when victims were never tried in any kind of judicial proceeding. It is the absence of a trial altogether that gives rise to the charge of denial of fair trial. In a non-international armed conflict, both forms are captured by the Rome Statute Article 8(2)(c)(iv) war crime of denial of fair trial.

Based on the facts as laid out in the arrest warrant, both murder and denial of fair trial could have been alleged against Al-Werfalli. These two crimes have elements distinct from one another. Murder requires, inter alia, proof that the “perpetrator killed one or more persons” (ICC Elements of Crimes, Article 8(2)(c)(i)). By contrast, denial of fair trial requires proof that, inter alia: (1) “[t]he perpetrator passed sentence or executed one or more persons”; (2) “[t]here was no previous judgement pronounced by a court, or the court that rendered judgement was not ‘regularly constituted’, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law”; and (3) “[t]he perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial” (ICC Elements of Crimes, Article 8(2)(c)(iv)).

Although alleging denial of fair trial would be a first for the ICC OTP, it has been done in other jurisdictions. Denial of fair trial in its second form is what the Co-Investigating Judges pleaded in 2008 in the ECCC’s Closing Order in the Duch Case. Based on the same facts alleging extrajudicial killings, the Co-Investigating Judges pleaded both wilful killing and denial of fair trial as war crimes (Closing Order Indicting Duch (001/18-07-2007-ECCC-OCIJ), 8 August 2008). The United Nations War Crimes Commission (“UNWCC”) also described three trials held in 1946 in a British Military Court where German personnel were indicted for being “concerned in the killing” (by execution or lethal injection), without a trial, of American, British and French nationals (civilians or prisoners of war) who were captured behind German lines and accused of aiding the French resistance (See UNWCC, Law Reports, Vol. V, pp. 39-59 referring to: Trial of Karl Buck and Ten Others, Trial of Werner Rohde and Eight Others, and Trial of Karl Adam Golkel and Thirteen Others). While the judgements in these British Military Court trials were not reasoned, the UNWCC concluded that the British Military Court may have found the accused guilty of the crime of denial of fair trial, as a distinct crime from murder (See UNWCC, Law Reports, Vol. XV, pp. x-xi, Vol. V, pp. viii-ix, Vol, VI, pp. 102-103). There is nothing precluding the ICC OTP from following these models with respect to Al-Werfalli. 

Mistake of fact as a possible defence

Should Al-Werfalli ever be brought to trial, proof of a fair trial is an obvious line of defence, in these circumstances, to the charge of murder or to a charge of denial of fair trial. The arrest warrant hints at another possible defence. The arrest warrant describes that, in one video, Al-Werfalli was holding “a white document from which he reads” and that he describes as a “Decree decision” prior to the execution of 18 persons who were wearing orange jumpsuits and black hoods, while kneeling barefooted on the ground, with their hands tied behind their backs (Arrest Warrant, paras 10-11). This information tends to raise the possible defence of mistake of fact, a ground for excluding criminal responsibility under the Rome Statute if it negates the mens rea for the concerned crime (Rome Statute, Article 32). That is, any eventual defence may one day argue that, based on this piece of paper, Al-Werfalli thought he was carrying out judicially ordered executions.

This defence came up in all three British Military Court trials. Defence counsel in one of the cases argued that the executions took place pursuant to an order by the Head of the Security Police and SD (German intelligence) in the South West which, in turn, was based on an interrogation and the report thereof. Counsel argued that the accused had no information other than that the victims had been tried and condemned and that they had ‘neither the sense for technicalities nor the mental abilities to look deeper into the case’ (UNWCC, Law Reports, Vol. V, p. 43. See also UNWCC, Law Reports, Vol. V, pp. 49, 51-52, 57-58). The Prosecutor replied that lawful executions did not take place in woods, nor were those shot buried in bomb craters with their valuables, clothing and identity markings removed (UNWCC, Law Reports, Vol. V, p. 43. See also UNWCC, Law Reports, Vol. V, pp. 57-58.). Based on the evidence before it, in none of the three trials did the British Military Court accept the Defence argument of mistake of fact. Unlike the facts in these post-war cases, the circumstances described in the arrest warrant do not hint at Al-Werfalli trying to cover up the executions. On the contrary, the arrest warrant is supported in large part by video footage of the executions posted on social media. As such, mistake of fact may one day be raised by the Defence in any eventual trial.

Conclusion

The arrest warrant against Al-Werfalli, in not alleging denial of fair trial, raises a prosecutorial policy question that is bound to come up again and again in years to come, as denial of fair trial is implicated, or may in time be implicated, in seven out of nine situations currently under preliminary examination by the ICC OTP (See J. DePiazza, “Denial of Fair Trial as and International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017), pp. 258-259). Pursuing denial of fair trial as criminal conduct would be consistent with the ICC OTP’s prosecutorial policy of seeking to represent as much as possible the true extent of the criminality within a given situation and to take into particular consideration crimes that are traditionally under prosecuted (ICC OTP, Policy Paper on Case Selection and Prioritisation, 15 September 2016, paras 45-46). In the latter respect, it is worth noting that despite the prominence of summary executions in the crime base of the ICTY’s cases, no accused was ever charged with denial of fair trial.

Pursuing denial of fair trial would also draw attention to the fact that this conduct is a gateway to other crimes. The facts giving rising to the arrest warrant are a testament to this. Had there been a fair trial, there may have been no murder. Moreover, there is normative value in separating out this conduct from murder in the same way that there is normative value in separating out the crime of rape from the crime of torture. Further, where denial of fair trial occurs in the absence of a trial, and murder is already charged, pursuing denial of fair trial would entail little cost in terms of the ICC OTP’s finite resources. The evidence would largely overlap. Should the ICC OTP pursue allegations of denial of fair trial in the Libya Situation or in any of the other relevant situations under preliminary examination, novel and interesting legal questions will arise, and among them is the possible defence of mistake of fact.

There are also a number of interesting questions concerning non-state actors, specifically. While arguably outside the scope of inquiry once the ICC OTP has chosen to allege denial of fair trial (See J. DePiazza, “Denial of Fair Trial as and International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017), fn. 112), these questions could nonetheless be taken into account by the ICC OTP in deciding whether to pursue allegations of denial of fair trial against a non-state actor. Among the questions is the legitimacy of trials by non-state actors under international humanitarian law and the practicability/advisability of holding non-state actors accountable for non-adherence to fair trial standards that they may be incapable of providing (See S. Sivakumaran, “Courts of Armed Opposition Groups – Fair Trials or Summary Justice” 7 Journal of International Criminal Justice (2009); L. Doswald-Beck, ‘Chapter 23. Judicial Guarantees under Common Article 3’, in A. Clapham, P. Gaeta and M. Sassòli (eds), The 1949 Geneva Conventions – A Commentary (Oxford University Press, 2015) 469).

*The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY in general.

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  • EJIL Analysis
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    Comments

    Prof. Kevin Heller says

    August 23, 2017

    Fascinating and important post. I do wish, though, that you had delved more into the final topic -- the legitimacy of trials held by NSAs. If you believe, as I do, that international law never entitles an NSA to hold criminal trials, it would be difficult to defend charging a member of an NSA with both the war crime of murder for a summary execution and the war crime of denying a fair trial. The latter charge seems to presuppose that a fair trial was, in fact, possible.

    Sancho says

    August 23, 2017

    But Kevin, if you believe that then it's not just a difficult charge to defend - it's actually impossible. If NSAGs were to carry out punishments after holding trials that go above and beyond internationally recognised fair trial rights and then they would be charged with murder anyway, then what incentive do they have to hold a trial at all? Your position would actually undermines the protections afforded by IHL protections (see Common Article 3(1)(d)) rather than reinforce them..

    Kevin Jon Heller says

    August 23, 2017

    Sancho,

    I completely agree with your "impossible" point. But many aspects of IHL are not ideal from a humanitarian perspective -- such as the absence of POW status and combatant's privilege in NIAC. Why should NSAs comply with IHL's targeting rules if killing a government soldier still be considered murder? Should we read the GCs and APs teleologically to grant those privileges to NSAs because not doing so would "undermine the protections afforded by IHL"?

    The same argument applies to the idea that NSAs can judge, sentence, and execute government soldiers for war crimes by enacting "legislation" and creating "courts." That position is, in my view, fundamentally irreconcilable with the intention of the states that drafted the GCs and APs. And I reject reading treaties teleologically.

    Sancho says

    August 23, 2017

    To be clear, I meant murder as a war crime not murder under domestic law.

    Because with the example you give Kevin there is still the possibility at least that NSAG members could could receive amnesty for violations of domestic law (see Article 6(5) of APII). Same goes for NSAGs holding trials, since that obviously that violates domestic law on numerous fronts. However, there it is not impossible for NSAG members to escape prosecution - if they follow the rules there is the possibility for amnesty as recognised by IHL. That's a decent incentive.

    However, when following IHL rules will nonetheless result in war crimes charges - and since there is no amnesty for international crimes (disputed by some, I know - but it has the tide of case law behind it) - then they are put in a really impossible situation with no way out. The incentive to follow the rules is gone. That's the problem - from a pragmatic perspective - with your position Kevin.

    Sancho says

    August 23, 2017

    I should also emphasise that it is not just only a problem that they would be charged with murder as a war crime but that if they can't hold trials in the first place then a conviction for murder must always follow. It is an automatic conviction with no possibility for an amnesty

    With murder under domestic law, yes it is also an automatic conviction but at least there if IHL is followed then the possibility for an amnesty remains.

    Kevin Jon Heller says

    August 23, 2017

    I don't think there is a strong argument for the idea that war crimes cannot be amnestied. States do it all the time, which is what matters -- not the judgments of courts, which do not count toward custom. (And in any case I disagree that the caselaw is anything more than a trickle.) Moreover, it is worth noting that nothing in Art. 6(5) of AP II limits amnesties to domestic crimes.

    Even accepting your claim, though, I think the attempt to separate the two situations fails -- *especially* from a pragmatic perspective. It simply strains credulity to think that a state is more likely to prosecute a rebel or terrorist who denies a detained person a fair trial (because you can't amnesty a war crime) than a rebel or terrorist who kills a government soldier (because you can amnesty violations of domestic law). On the contrary, the state is far more likely to ignore the unfair trial, at least insofar as it doesn't result in an execution. So again, the incentive not to follow IHL results much more strongly from the absence of combatant's privilege in NIAC than from the fact that IHL does not permit NSAs to hold trials.

    Sancho says

    August 23, 2017

    Yes States do it, but if domestic courts then overturn them then that is imputed to the State concerned for international law purposes (e.g. Ferrini case in Italy). In any event, if States follow the rulings of the court concerned then arguably that also counts. As for the amnesty point, the Inter-American Court of Human Rights has been consistent on it and the European Court of Human Rights has played around with the notion (but not yet issued - as far as I'm aware - an unequivocal ruling). One can also find it in domestic judgments, including most recently from the Ugandan Supreme Court.

    As for Art 6(5) of APII and its lack of reference to domestic crimes, see the explanation to Rule 159 of the ICRC's customary study which states that it cannot apply to international crimes (which only leaves domestic crimes). This was recently affirmed by the Inter-American Court of Human Rights in El Mozote.

    But aside from that, its not about which crime a State is more likely to prosecute or not. The issue is under which scenario would a NSAG have an incentive to follow IHL. On your view - as it relates to murder as a war crime - NSAG members will be automatically guilty, no matter what rights they afford detainees. It's a slam dunk case for the Prosecution before the trial even begins (in light of the video footage...) Under domestic law it is the same but for the fact that they have the possibility to receive an amnesty in so far as they do not breach IHL rules.

    At the end of the day, however, I think our difference of opinion pertains to the issue of whether war crimes are subject to amnesties, to which I refer to my first two paragraphs.

    Kevin Jon Heller says

    August 23, 2017

    I think the difference of opinion is broader than that. You seem to believe that states are likely to amnesty rebels or terrorists who kill government soldiers as long as they kill them in an IHL-compliant way. I think the likelihood of either result is vanishingly slim.

    I also disagree with your evidentiary point. As this post itself indicates, convicting al-Werfalli is anything but a slam dunk in light of the mistake of fact issue. By contrast, nothing could be easier than convicting a rebel or terrorist of domestic murder for killing a government soldier -- all you need to prove is that the government soldier is dead and that the rebel or terrorist killed him.

    Finally, as for the amnesties question, I think the ICRC's paucity of state practice regarding war crimes in particular (as opposed to crimes against humanity, where the argument is clearly stronger) speaks for itself. But that debate would take more space than we have here.

    Sancho says

    August 23, 2017

    It's not about whether States are likely to give amnesty or not given a particular set of facts. It's about whether the possibility exists in law and, consequently, creating an incentive for NSAGs to follow IHL despite the fact that they are violating domestic law in the process. And on this point, my position is that an amnesty is possible but only for domestic crimes (murder under domestic law), but not for international crimes (murder as a war crime). But your position Kevin takes away this incentive mechanism that NSAGs might otherwise have to respect IHL.

    As for the evidentiary point - well taken. But it doesn't undermine what I was trying to say: that an automatic conviction will necessarily follow in such cases under your preferred view (all other things being equal).

    Jennifer DePiazza says

    September 6, 2017

    Dear Kevin, Dear Sancho,

    Thanks for the kind words on my post and for your interest. I agree that IHL does not set out an entitlement for NSAs to hold criminal trials. However, it is my view that IHL absolutely demands it of NSAs if they seek to resort to sentencing or executing a person taking no active part in hostilities, including persons hors de combat. That is, if NSAs do not want to be accused of violating the Geneva Conventions, or in an ICC context, accused of a war crime, they should endeavour to hold a fair trial or, alternatively, proceed to handle the enemy persons under their control in another common article 3 compliant manner.

    The drafting history of common article 3 indicates that the summary executions that took place during the Second World War were heavy on the minds of the delegates. As such, they considered that the provision of a fair trial was one of the minimum humanitarian duties that should apply to Parties to a NIAC and that should be codified in common article 3. This, of course, still leaves us with the question of whether NSAs can hold a trial that would meet the required fair trial standards. While this issue remains, from a humanitarian point of view, as one of the delegates during the drafting of the Geneva Conventions stated (in the context of the common article 3 negotiations, in general), half a loaf is better than no bread.

    One of the points I did not mention in my post is that should the ICC OTP accuse Al-Werfalli or anyone else of denial of fair trial in a NIAC, it will have to interpret for the first time this element of the crime:

    [t]here was no previous judgement pronounced by a court, or the court that rendered judgement was not 'regularly constituted', that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law (ICC Elements of Crimes, Article 8(2)(c)(iv)).

    I note in this regard that the drafters of the ICC Elements of Crimes chose not to define "regular constitution" as a court that has been established and organised in accordance with the laws and procedures already in force in a country (See ICRC, Customary International Law, Volume I: Rules, Rule 100 (on the notion of “regular constitution”). Instead the drafters chose to define “regular constitution” as meaning a trial by an independent and impartial court. This is significant in the context of NSAs in a NIAC.

    I do not think that it is impossible for NSAs to comply with the “essential guarantees” or “other judicial guarantees generally recognized as indispensable under international law”. But as I said, if they cannot, they should think twice about sentencing or executing an enemy under their control. Interestingly, Louise Doswald-Beck has proposed that if a NSA cannot in practice respect the judicial guarantees required for trials, detention without trial might be a better option (L. Doswald-Beck, ‘Chapter 23. Judicial Guarantees under Common Article 3’, in A. Clapham, P. Gaeta and M. Sassòli (eds), The 1949 Geneva Conventions – A Commentary (Oxford University Press, 2015) 494.). My view on that is not decided, but I think it is an interesting proposal.