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.
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.