The ICC must consider fair trial concerns in determining Libya’s application to prosecute Saif al-Islam Gaddafi nationally

Written by

Jonathan O’Donohue is a Legal Adviser for Amnesty International’s International Secretariat. He leads the Coalition for the International Criminal Court’s Budget and Finance Team.

Sophie Rigney is a PhD candidate at the University of Melbourne, examining the role of the rights of the accused in international criminal law. Between 2009-2011, she  worked at the International Criminal Tribunal for the Former Yugoslavia, including as Legal Assistant to the Stand-by Counsel in the case of Radovan Karadžić.

The ICC’s Pre-Trial Chamber is considering the Libyan government’s challenge to the admissibility of the case against Saif al-Islam Gaddafi. The request raises serious concerns as to whether he would receive a fair trial in Libya. 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.

Saif al-Islam Gaddafi was arrested in November 2011 and is being held in Zintan by militia who are refusing to hand him over to the central authorities. According to the Office of Public Counsel for Defence representing him at the ICC, he has been held in isolation in secret locations without access to national courts or effective access to a lawyer or facilities to communicate with his family.

More generally, the Libyan national justice system remains in a weak state. Thousands of suspected al-Gaddafi loyalists are currently being detained in Libya by armed militias outside the framework of the law. Only a small number have been presented before a court or charged with a recognisable criminal offence. Amnesty International has documented torture and other ill-treatment of these detainees, in some cases resulting in coerced confessions and death.

A new law enacted in May 2012 undermines freedom of expression by prescribing prison sentences for spreading false rumours, propaganda, or information with the aim of harming national defence, “terrorizing people”, or “weakening citizens’ morale” during war time. This could have specific consequences for those who may be prosecuted in Libya for criminal offences associated with the al-Gaddafi regime. Defence lawyers may be reluctant to represent them for fear of being prosecuted for statements they made in the defence of their clients. Defence witnesses may refuse to give evidence.

Another new law establishes selective justice by providing amnesty to anti-Gaddafi fighters if their actions –potentially including crimes under international law – served the “17 February Revolution.”

These fair trial concerns have prompted Amnesty International to call repeatedly on the Libyan authorities to surrender Saif al-Islam Gaddafi to the ICC and to focus on rebuilding the national justice system in order to be able to investigate and prosecute all other cases involving crimes committed by both sides in accordance with international standards.

However, some claim that the ICC cannot determine that a case is admissible because the national proceedings would be unfair.  In his article, The Shadow Side of Complementarity: the effect of Article 17 of the Rome Statute on national due process, Kevin Jon Heller contends that 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. If its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State no matter how unfair those proceedings may be.

Following Saif al-Islam Gaddafi’s capture, the ICC Prosecutor also appeared to question the relevance of fair trial concerns in the process stating in a press conference shown by Al-Jazeera: “[w]e are not a human rights Court. We are not checking the fairness of the proceedings. We are checking the genuineness of the proceedings.”

However, these interpretations are in the minority. In 2003, an informal Panel of Experts advising the ICC Prosecutor on The Principle of Complementarity in Practice concluded on this issue: “although the ICC is not a “human rights court”, human rights standards may still be of relevance and utility in assessing whether the proceedings are carried out genuinely.”

Significantly, Libya’s application implicitly recognizes that the Pre-Trial Chamber must declare a case admissible if the national criminal proceedings are unfair by asserting that “[i]t 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.” Much of the application focuses on attempting to demonstrate Libya’s ability to conduct fair trials.

As explained below, the interpretation requiring the Pre-Trial Chamber to take into account fair trial concerns in determining admissibility is correct.

“Genuine” investigations and prosecutions must respect international fair trial standards

Article 17 (1) (a) states that an ICC case is inadmissible where it “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.”

The key word in the provision is “genuinely.” The adverb modifies “to carry out the investigation or prosecution.” It is not sufficient to carry out just any investigation or prosecution – the national proceedings must meet a particular standard.

So what are genuine investigations and prosecutions? Must proceedings be fair to be “genuine”?

The Concise Oxford dictionary defines “genuine” as “not sham” and the Chamber’s 21st Century dictionary’s definition includes “honest” and “sincere.” These definitions would cover proceedings designed to shield the accused from justice as envisaged in Article 17 (2). However, as the informal Panel of Experts noted, the term must be applied to “inability” as well as “unwillingness”, suggesting a level of “objective quality.”

This approach is supported by commentaries recording that the term “genuine” was selected by the drafters over a number of possible qualifiers, including “good faith” which shows states were not only interested in the intention of those conducting the proceedings, but also in their capacity to achieve an objective outcome. That outcome must be the effective administration of justice – not simply a conviction.

Respect and protection of fair trial rights are key objective factors that must be considered in determining whether proceedings are of such a quality that they may be considered “genuine”. In its General Comment 32, the United Nations Human Rights Committee clarifies that the right to a fair trial “serves as a procedural means to safeguard the rule of law.” Indeed, the ability of national courts to ensure a fair trial is a crucial criterion applied by the ad hoc Tribunals for the former Yugoslavia and Rwanda when determining whether to refer a case to a national jurisdiction under Rule 11 bis.

Trials which fail to respect the rights of the accused are neither an honest nor sincere application of the rule of law and can properly be viewed as shams. As the ICC’s Appeals Chamber affirmed in a 2006 decision: “[a] fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.”

National authorities cannot be excused from fulfilling fair trial rights in challenging the ICC’s admissibility because they are developing or emerging from conflict. As the 2001 Vienna Declaration on Crime and Justice, endorsed by the United Nations General Assembly, emphasises, each State has a responsibility “to establish and maintain a fair, responsible, ethical and efficient criminal justice system.” In situations like Libya where the justice system has been so eroded, re-establishing the rule of law to address impunity should be given priority. The overriding benefit of the ICC is that when national authorities are not yet in a position to conduct genuine investigations and prosecutions, the Court can step in to investigate and prosecute some cases in accordance with fair trial standards.

National justice systems that do not ensure fair trials are unable to deliver justice and should be considered to be in “a state of total or substantial collapse” or “unavailable”

Article 17 (3) requires in determining inability “the Court shall consider whether, due to a total or substantial collapse or unavailability of its national justice system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”

The first issue to consider is whether a national justice system that fails to guarantee fair trials to suspects is in a state of “substantial collapse” or “unavailability.”  Fair trial concerns are both a symptom of a substantially collapsed justice system and, particularly when systematic, can cause the substantial collapse of the justice system. Furthermore, fair trial concerns can render the justice system unavailable to the accused who relies on the fairness of the proceedings to establish his or her guilt or innocence.

The second issue is whether as a result of the substantial collapse or unavailability of the justice system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. Fair trial concerns are also relevant in determining whether these criteria have been met.

States cannot ensure the rights of suspects and conduct genuine prosecutions if they cannot obtain them. In the current proceedings, militias have refused to hand Saif al-Islam Gaddafi over to the central authorities and continue to detain him in conditions which appear to violate his rights.

The ability to obtain all relevant evidence and testimony should not be limited to inculpatory evidence gathered by the prosecution. A plain English reading of the phrase refers to all evidence – including that which tends to exculpate the accused.  The ability of the parties, including the defence, to collect exculpatory evidence and testimony is essential for a proceeding to be genuine. 

Finally, a plain reading of the phrase “or otherwise unable to carry out its proceedings” includes fair trial concerns.  Safeguarding the rights of the accused is at the heart of a functional legal system. In the absence of such protection, there simply is no ability to carry out proceedings which deliver justice.

The ICC has yet to find a state unable to conduct genuine investigations and prosecutions on fair trial grounds. However, in the decision on admissibility in the Katanga case, the Chamber found that an inability to conduct fair trials could form the basis of referral. It stated that the reasons for a state referring a situation concerning its territory to the ICC may include situations where “the State considers itself unable to hold a fair and expeditious trial or because it considers that circumstances are not conducive to conducting effective investigations or holding a fair trial.”

The context, object and purpose of the Rome Statute is to promote justice – not injustice

Article 17 must be read contextually and in the light of the clear object and purpose of the Rome Statute: to ensure and promote justice for crimes under international law, thus ending impunity. This includes ensuring the rights of the accused.

The Preamble of the Rome Statute states that “[t]he States Parties to this Statute [resolve] to guarantee lasting respect for and the enforcement of international criminal justice.” International criminal justice does not only relate to proceedings in international criminal courts, but includes states exercising jurisdiction over crimes under international law. Unfair prosecutions undermine respect for international justice and the rule of law.

Article 17 must also be read in light of the strong rights of the accused before the ICC guaranteed in Articles 55 and 67. These articles enshrine key fair trial guarantees under international law and standards, including those contained in the International Covenant on Civil and Political Rights, which has been ratified by 167 countries (including Libya).

Justice requires the independent administration of justice before independent and impartial courts based on rigorous testing of evidence, in the context of proceedings which respect the rights of the accused. As Heller concedes: “if the ICC simply turns a blind eye to unfair national trials […] it will simply permit States to replace one kind of impunity with another.”

Article 17 must be interpreted and applied consistent with internationally recognized human rights

Article 21 (3) of the Rome Statute states: “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights.” This trumps all other provisions of the Rome Statute.  Regrettably, those advocating for a restrictive interpretation of Article 17 have given little, if any, weight to this important provision.

The ICC judges have, however, repeatedly affirmed and applied the contents of Article 21 (3). Most notably, the Appeals Chamber stated in a 2006 decision that Article 21(3) requires that the Statute must be interpreted and applied in accordance with human rights. In particular, they note that “Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court”.  The human rights that must be invoked in interpreting and applying the Statute include “first and foremost […] the right to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety.”

The drafters did not preclude the ICC from considering fair trial concerns

Much attention has been given to the reluctance of some states to recognize fairness in the criteria to establish inability in Article 17 (3).  John T. Holmes’ commentary of the drafting process of Article 17 in The International Criminal Court: the making of the Rome Statute notes that “many delegations believed that procedural fairness should not be a ground for the purpose of defining complementarity.” Heller describes the rejection of an Italian proposal that would have required the Court to consider whether the national investigations or prosecutions “were or are conducted with full respect for the fundamental rights of the accused.” The precise concerns of the drafters on this issue, however, are not particularly clear. For example, the informal Panel of Experts indicate that states were not opposed to fairness per se but that “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.”

If the drafters had intended to preclude the ICC from considering fair trial issues in determining inability, they would have included wording to this effect in Article 17 (3). They did not do so, or even attempt to do so.


The ICC was established to bring the hope of justice where impunity exists. The Court is intended to not only investigate and prosecute crimes under its jurisdiction but to act as a catalyst for genuine national justice by applying the principle of complementarity. Before finding a case is inadmissible, the ICC must be satisfied that the national justice system will respect and protect the rights of the accused person to a fair trial in accordance with international law and standards. Failure to do so would have severe consequences not only for the rights of Saif al-Islam Gaddafi in the current proceedings, but more generally for human rights, the rule of law, and the credibility of the ICC. It would be abhorrent for the ICC to defer to unfair national proceedings, especially where the accused faces the death penalty.

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Kevin Jon Heller says

June 8, 2012

It's worth noting that just yesterday the Office of the Prosecutor unequivocally rejected the position taken in this post, as I discuss here:

Charles Jalloh says

June 13, 2012

Great post. Put simply, the ICC should not participate in a charade.

Indeed, if anyone needed actual proof that Libya's legal system is wholly incapable of holding a fair trial that comports with the due processrequirements of the Rome Statute of the International Criminal Court, now you have it in Libya's unacceptable decision to unlawfully detain, as of June 7, 2012, one of the two Pre-Trial Chamber appointed lawyers for Saif al-Islam Gaddafi from the ICC's Office of the Public Counsel for Defence.

Ms. Melinda Taylor was directed to represent the interests of Mr. Gaddafi, pending the appointment of his own counsel, but despite her immunity from any form of arrest and legal process for her official acts has apparently been detained either by militia or government forces in the Western Libyan town of Zintan. She was travelling with three other ICC staff, who also appear to have been detained. The ICC President has reminded that the delegation enjoys immunity and should be released forthwith. Libya has refused to budge. So much for Libya's alleged ability to hold a fair trial!!

For more on this story, go over to International Criminal Law Ferment where I have blogged about this issue:

Tomaso Falchetta says

June 13, 2012

I cannot agree more with the writers.

Instead I am unable to understand those who claim serious fair trial concerns can be dismissed as simply "regrettable" side effects.

It seems sufficiently plain to me that the test to establish whether national authorities have the intention/capacity to bring the suspect to justice must include an assessment of the fair trial of the national proceedings. Without such fair trial, there would simply be no justice.

Tomaso Falchetta

John R Morss says

June 18, 2012

It seems regrettable in many ways but I think KJH is probably correct in his analysis. May I ask if anyone is surprised that Australian lawyer Melinda Taylor [who we all hope is ok] was placed in the position she has been ie by the ICC -- why was she sent to Libya? it seems extraordinary for ICC defence counsel to be involved in such a direct geographical 'outreach' sense ahead of the person's release to ICC jurisdiction. How could her mission not undermine or compromise Libya's own processes, and hence compromise ICC integrity? [and let's hope the Australian govt's correct protective response to Taylor's difficulty reminds it of its obligations to that other Australian in trouble ...]

John Morss says

June 21, 2012

responding to myself [bad habit], but wonder if anyone thinks Julian Assange's Ecuador asylum bid has any legs? JRM