Monthly Archives: April 2015

Italy and the Crime of Torture: a story of impunity

On 7 April 2015 the Fourth Chamber of the European Court of Human Rights (ECtHR) issued its decision in Cestaro v. Italy, which condemned Italy for violating article 3 of the European Convention of Human Rights (ECHR), both in its procedural and substantial aspects. In particular, the Court found that the ill treatment perpetrated by the Italian police in the night between 21 and 22 July 2001 within the School ‘Diaz-Pertini’ (Genoa, Italy) are to be considered as acts of torture.[1] This post focuses on the main reasons that brought the Court to this conclusion and aims to provide some preliminary remarks on the draft law, which is currently under the examination of the Italian Parliament. It is argued that such a draft law might not adequately comply with the procedural obligations deriving from article 3 ECHR.

The judgment at issue stems from the disorder that took place in Genoa during the no-global summit organised by the Genoa Social Forum (GSF), which aimed to discuss the issues on the agenda at the G8 summit. Subsequent to the tragic events which had culminated, a few days before, with the death of Carlo Giuliani, and following the closure of the works of the G8 summit, around 500 officers were involved in a police operation on the night of 21 July. On that occasion, 93 people, who had come to Genoa for the Social Forum and were legitimately using the School as sleeping space, were attacked and arrested.[2] Significantly, 78 out the 93 people arrested were injured to the point of needing hospital care.[3] Moreover, any ex post facto attempt to justify these events turned out to be fallacious and intentionally misleading.[4]

The European Court’s findings

The Court concluded that a procedural and substantial violation of Article 3 ECHR had thus arisen. On the substantive violation, the Court declared that les tensions qui, comme le prétend le Gouvernement, auraient présidé à l’irruption de la police dans l’école Diaz- Pertini peuvent s’expliquer moins par des raisons objectives que par la décision de procéder à des arrestations médiatisées et par l’adoption de modalités opérationnelles non conformes aux exigences de la protection des valeurs qui découlent de l’article 3 de la Convention ainsi que du droit international pertinent.[5]

As for the procedural violation, the conclusions reached by the Court are particularly interesting. The main reason for the Court to conclude in favour of a procedural violation of article 3 ECHR is that, in spite of its ratification of both the ECHR (in 1955) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (in 1988), Italy still needs to adjust its legal order by introducing a crime (delitto) of torture in its Penal Code. On the one hand, most of the conduct relevant for the case at issue might have, at least in theory, been punished by being ascribed within other categories of crimes. On the other hand, the international crime of torture constitutes an unicum, especially in terms of its authors, the applicability of a statute of limitations, and the possibility to grant measures such as amnesties and pardons when torture is concerned.

It is worth noting that none of the accused for the conduct discussed in the present case has been condemned by the Italian Courts for the crimes they were accused of in the absence of a crime of torture, namely, the crimes of simple and aggravated assault.[6] All the accused, in fact, benefitted from the expiration of the time limit for prescription, whereas those accused of perjury, calumny, and abuse of authority could also enjoy the benefits deriving from the 2006 statute (i.e., legge n. 241 del 29 luglio 2006), which provided for a general reduction of 3 years of the period of imprisonment (or pardon). In this regard, the Court has recalled as follows.

[E]n matière de torture ou de mauvais traitements infligés par des agents de l’Etat, l’action pénale ne devrait pas s’éteindre par l’effet de la prescription, de même que l’amnistie et la grâce ne devraient pas être tolérées dans ce domaine. Au demeurant, l’application de la prescription devrait être compatible avec les exigences de la Convention. Il est dès lors difficile d’accepter des délais de prescriptions inflexibles ne souffrant aucune exception (…). Il en va de meme du sursis à l’exécution de la peine (…) et d’une remise de peine.[7]   Therefore, [l]a Cour considère dès lors que c’est la législation pénale italienne appliquée en l’espèce (…) qui s’est révélée à la fois inadéquate par rapport à l’exigence de sanction des actes de torture en question et dépourvue de l’effet dissuasif nécessaire pour prévenir d’autres violations similaires de l’article 3 à l’avenir.[8]

The Italian draft law introducing the crime of torture in the Italian Penal Code

The Strasbourg Court has noted that on 5 March 2014 the Italian Senate has finally approved a draft law (i.e., disegno di legge N. 10), aiming at ‘introducing the crime of torture’, which, since 14 April 2015, has been officially registered on the agenda of the Italian Camera dei Deputati. Needless to say, this might be an important and positive step towards the end of impunity when it comes to torture. However, in order to see whether or not this provision would substantially allow Italy to comply with its international obligations, an analysis of the draft law seems here necessary.

First, according to some of the Senators who originally submitted this draft law, ‘il reato qui configurato è di natura comune in quanto il reato può essere commesso da chiunque’. Hence, the Senators claimed they aimed at providing an ‘even broader definition’ of the crime of torture than the correspondent international crime, as the draft law does not incorporate the element of the participation of a state agent. As Antonio Cassese pointed out, however, [l]a necessaria partecipazione di un organo (rappresentante) – de jure o de facto – dello Stato alla realizzazione della condotta tipica, discende dal fatto che in questo caso la tortura è considerata punibile, dalle norme di diritto internazionale, anche quando essa costituisce un episodio singolo o sporadico.[9]

Therefore, according to Cassese, for determining the international crime of torture, one single episode might be deemed sufficient, and this because a state agent commits or permits, or even tolerates such a conduct. On the contrary, the draft law currently under the examination of the Italian Parliament makes reference to ‘violenze o minacce gravi, ovvero (…) trattamenti inumani o degradanti la dignità umana’, that is, to several episodes. In other words, what had been conceived to be ‘an even broader’ crime with respect to the international one, might in fact turn out to be a narrower one.

Moreover, it is exactly the (active or passive) role of the State throughout its agent(s) that determines, inter alia, the gravity of such a crime. On the contrary, the draft law approved by the Senate regrettably considers as a mere aggravating factor the fact that the crime is committed by a de iure state agent, and it punishes the incitement to commit torture, even if an inchoate one, only when this comes from such a state officer. All cases concerning acts of torture committed by any de facto agent, or with the state officer(s) omitting to act to prevent or punish the commission of such an act by his subordinates, are therefore not included within the meaning of the provision under consideration. In this respect, the doctrine of the command responsibility[10] might not find an adequate recognition.Having regard to the circumstances that led to the condemnation of Italy in Cestaro v. Italy, this is particularly unfortunate.

Also, this draft law does not provide for any differences with regard to the statute of limitations. As a consequence, the ‘ordinary’ statute of limitations will apply to torture, with the only exception, pursuant to article 157 of the Italian Penal Code, of the case in which torture results in the death of the victim(s), an event which is in fact punished with the so-called ‘ergastolo’, namely, an imprisonment lasting for 30 years. Finally, according to what the Court ‘recalled’ in the present case,[11] a provision incorporating the international crime of torture should provide for the inapplicability of measures such as a general reduction of punishment (indulto).

It follows that despite the efforts of the Italian Parliament aimed at putting an end to such an embarrassing condition of impunity when it comes to torture,[12] Italy might still incur in international responsibility, as the draft law currently under examination of the Italian Parliament presents significant flaws and departs from the relevant international obligations.

[1] Cestaro v. Italy App no 6884/11 (ECtHR, 7 April 2015) at 190.

[2] Corte di Cassazione, Judgment no 38085 of 5 July 2012.

[3] ibid.

[4] The Italian Corte di Cassazione called it ‘una complessa opera di mistificazione’. See Corte di Cassazione, supra note 2 as cited in Cestaro v. Italy, supra note 1, at 184.

[5] Cestaro v. Italy, supra note 1, at 189.

[6] ibid., at 221.

[7] ibid., at 208.

[8] ibid., at 225.

[9] Antonio Cassese, Lineamenti di diritto internazionale penale. I Diritto sostanziale (2005) 159.

[10] William Schabas, An Introduction to the International Criminal Court (2009) 233-235.

[11] Cestaro v. Italy, supra note 7.

[12] ibid., at 73.Palazzo madama

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Human rights outcasts: seriously-ill migrants as beyond the reach of European protective legal regimes

Illegal aliens suffering from a life-threatening illness have been excluded from the protection of article 3 (right to personal integrity) of the European Convention of Human Rights (ECHR) and of the European Council Directive 2004/83/EC.[1] This post examines the European Court of Human Rights (ECtHR)’s and the European Court of Justice (ECJ)’s positions regarding medical asylum seekers and some of the contradictions emerging from the ECtHR case-law.

The case of S.J. v. Belgium originated in the Belgian Alien Office’s decision to expel Ms S.J., a Nigerian young mother of three, in 2010.[2] Upon her arrival in Belgium in 2007, Ms S.J. was diagnosed with a serious immune system deficiency requiring antiretroviral treatment. She was closely monitored for the following years and as a result her state of health was stabilised. As she had no realistic prospect of obtaining access to the appropriate medical treatment in Nigeria, Ms S.J. requested the ECtHR to declare that her deportation would violate article 3 of the ECHR since it would expose her to a premature death in conditions of acute physical and mental suffering. On 27 February 2014, relying on the principle established in N. v. UK, the ECtHR Chamber ruled that Ms S.J.’s expulsion would not breach article 3.[3] Nonetheless, the Belgian government eventually decided to grant her indefinite leave to remain in Belgium on account of the strong humanitarian considerations characterising her situation.[4] Accordingly, the Grand Chamber struck the case out on 19 March 2015, without departing from the Chamber’s finding of non-violation of article 3.[5]

In his dissent to the Grand Chamber decision, Judge Pinto de Albuquerque strongly criticised the ECtHR’s approach in medical asylum cases and called upon the Court to revisit the ‘unfortunate principle’ laid down in N. v. UK (2008).[6] This case concerned an HIV-infected young Ugandan woman threatened with expulsion from the UK.[7] The Grand Chamber found that her removal to Uganda would not breach article 3 on the basis of the following considerations:

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.[8]

The only case where the ECtHR found the circumstances sufficiently exceptional to conclude that the applicant’s removal would be contrary to article 3 was D. v. UK (1997).[9] The applicant was in an advanced stage of Aids and his short life expectancy was contingent on the continuation of the medical treatment available to him in the UK. He was close to death and had formed a bond with the carers who supported him through the end of his life. As he did not have any familial, social or other support in his country of origin, St Kitts, where the adequate medical treatment for his illness was not available, the ECtHR held that his deportation would violate article 3.[10] This case contrasts with subsequent medical asylum cases where the ECtHR found that the circumstances of the applicants were not sufficiently distressing for an issue under article 3 to arise if they were expelled.[11] Their situations were distinguished from D. v. UK on the basis that their illness had not reached a critical stage or that family members could take care of them in their country of origin.[12]

It appears from this case-law that the expulsion of seriously-ill aliens may only raise an issue under article 3 where their illness is so advanced that their death is imminent. As long as their health condition is stable at the time of the proposed removal and they are fit to travel, the ECtHR does not consider as a relevant factor the impossibility in fact of accessing adequate medical treatment in the receiving state, even though this circumstance would most likely cause the applicant’s premature and painful death. In N. v. UK, for instance, N. contended that she would not be able to afford the necessary treatment in Uganda and the Court recognised that without such treatment her state of health would rapidly deteriorate, causing her intense suffering.[13] Yet, her circumstances were not found sufficiently compelling to prevent her expulsion and she died within a few months of her return to Uganda.[14]

The ECtHR has established that article 3 requires Convention states not to remove persons under their jurisdiction to countries where they would be at risk of being exposed to inhuman or degrading treatment.[15] However, the Court has distinguished between situations where the prohibited treatment would emanate from the intentional acts or omissions of public authorities and those where the serious harm would stem from a naturally-occurring disease and the lack of resources to treat it in the receiving country.[16] This distinction is difficult to reconcile with the absolute nature of the prohibition contained in article 3.[17] It seems that it should not matter whether the suffering of an individual arises from an intentional act or a natural condition as long as it reaches a certain degree of gravity and can be prevented by the act of a Convention state. Indeed, even if a state’s responsibility is not engaged on the basis of the deficiencies of its health system, the actions subject to scrutiny under the ECHR are not those of the receiving state but of the expelling state. As pointed out by Judge Power-Forde in her dissent to S.J. v. Belgium (2014), the ‘crucial fact’ that will precipitate the suffering and death of the applicant is not the failure of the receiving country’s health system but the implementation of the removal decision by the expelling state.[18] Pursuant to the rationale of article 3 in removal cases, i.e. protecting individuals from exposure to inhuman or degrading treatment outside the Convention system, the expulsion of aliens to a country where they run a real risk of suffering such treatment should engage the responsibility of the expelling state even though the serious harm is not strictly imputable to the receiving state.

The distinction made by the ECtHR on the basis of the source of the prohibited harm has brought it to adopt contradictory approaches in cases concerning the extradition of prisoners and in medical asylum cases.[19] This difference of treatment is apparent when comparing Aswat v. UK (2013) and S.J. v. Belgium (2014)[20]. In the former, a mentally-ill suspected terrorist whose extradition was requested by the United States claimed that his transfer would expose him to a more hostile prison environment which could result in the deterioration of his mental and physical health. The Court agreed and held that his extradition would engage the responsibility of the UK under article 3.[21] By contrast, in the latter, although it was established that the medical treatment upon which the applicant’s life and personal integrity depended would only be available in her home country at considerable costs, which she could not afford, the Court did not find that her removal would violate article 3.[22]

Migrants suffering from life-threatening conditions are not only excluded from the protection of article 3 ECHR but also from the protective regime granted to refugees and persons otherwise in need of international protection by the EC Directive 2004/83/EC.[23] In M’Bodj v. État belge (2014), the Belgian Constitutional Court requested a preliminary ruling by the ECJ on the question whether aliens suffering from a serious health condition should be included in the category of persons protected by this Directive.[24] The ECJ ruled that, for the Directive to apply, the serious harm to which an alien would be exposed upon removal to his home country ‘must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.’[25] Accordingly, it was held that Directive 2004/83/EC does not protect seriously-ill aliens whose state of health is in risk of deteriorating if they are expelled, unless they are intentionally deprived of treatment in the receiving state.[26]

The situation of illegal migrants suffering from a life-threatening condition in countries in which they have been refused asylum is very precarious. However, rather than extending the protective scope of human rights and EU law to afford a minimum level of protection to those vulnerable people, the ECtHR and the ECJ have accepted that European member states have the right to deport them even where such a course of action would in all likelihood bring about their death in dire conditions. It is to be hoped that the ECtHR will align its medical asylum case-law with the protective standard of article 3 as elaborated in other removal cases. The lowering of the very high gravity threshold required for article 3 to be engaged in medical asylum cases could have an impact on the ECJ’s interpretation of serious harm under Directive 2004/83/EC and on the domestic law of Convention states. Such a step is needed to prevent persons like N. being sent to their death with the sanction of European human rights law.

[1] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.

[2] S.J. v. Belgium App no 70055/10 (ECtHR, 19 March 2015).

[3] S.J. c. Belgique App no 70055/10 (ECtHR, 27 February 2014).

[4] S.J. (n 2) para 56.

[5] ibid para 61.

[6] ibid para 1.

[7] N. v. the United Kingdom (2008) 47 EHRR 39.

[8] ibid para 42.

[9] D. v. the United Kingdom (1997) 24 EHRR 423; see also B.B. v France App no 47/1998/950/1165 (ECtHR, 7 September 1998) where the European Commission of Human Rights had found that the expulsion of the applicant would violate article 3.

[10] ibid para 51-53.

[11] S.C.C. v. Sweden App no 46553/99 (ECtHR, 15 February 2000); Bensaid v. the United Kingdom (2001) 33 EHRR 10; Arcila Henao v. the Netherlands App no 13669/03 (ECtHR, 24 June 2003); Ndangoya v. Sweden App no 17868/03 (ECtHR, 22 June 2004); Amegnigan v. the Netherlands App no 25629/04 (ECtHR, 25 November 2004); N (n 6); Yoh-Ekale Mwanje c. Belgique (2013) 56 EHRR 35; S.J. (n 3).

[12] See N. (n 7) paras 32-41.

[13] N. (n 7) paras 47-48.

[14] ibid para 50-51; see S.J. (n 3), Opinion dissidente de la Juge Power-Forde p 39 and S.J. (n 2), Dissenting Opinion of Judge Pinto De Albuquerque para 2.

[15] Soering v. UK (1989) 11 EHRR 439 paras 90-91; Vilvarajah and Others v. UK (1991) 14 EHRR 248 para 103; Chahal v. UK (1996) 23 EHRR 413 para 79-81; Ahmed v. Austria (1997) 24 EHRR 278 para 39; H.L.R. v. France (1998) 26 EHRR 29 para 34; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50 para 135; Hirsi Jamaa and Others v. Italy (2012) 55 EHRR 21 para 114.

[16] D. (n 9) para 49; N. (n 7) para 43.

[17] See Pretty v. the United Kingdom (2002) 35 EHRR 1 paras 49-52.

[18] S.J. (n 3) p 40-41.

[19] See previous post discussing Trabelsi v Belgium.

[20] Aswat v the United Kingdom (2013) 58 EHRR 1; S.J. (n 3), see Opinion dissidente de la Juge Power-Forde p 41-42..

[21] Aswat (n 19) para 57.

[22] S. J. (n 2) paras 123 and 126.

[23] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.

[24] C‑542/13 Mohamed M’Bodj v. État belge (ECJ, 18 December 2014).

[25] ibid para 35.

[26] ibid para 41.

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Lockerbie Affair and African States’ early support for the establishment of the International Criminal Court.

Introduction

Over the last few years, the relationship between the International Criminal Court (‘the Court’) and few but influential African states such as Libya, Rwanda, Kenya and Sudan can be defined as primarily antagonistic. Such states managed to influence the African Union (‘AU’) to adopt a stance that accused the Court of being a politicised institution, controlled by the most powerful states to selectively target African personalities. Consequently, the Assembly of the African Union the supreme organ of the Union adopted resolutions demonstrating African Union’s dissatisfaction with the manner that the Court was operating. It also passed resolutions   asking  African Union states which are also parties to the Rome Statute, the treaty that established the International Criminal Court  not  to execute the arrest warrants issued against  the Sudanese President Omar Bashir and  Muammar Gaddafi of Libya.

This rancorous relationship between the two institutions has already been widely discussed in both published and unpublished academic literature, including the blog sphere. The main focus of the discussion has been to establish whether the claims by Africa states that the Court is politicised and is focusing on Africa were genuine or exaggerated. This blog post focuses on a question that appears to have not received adequate attention. The question is why did African states supported the establishment of the  Court, if they knew that, one way of the other, it could end up having jurisdiction over its citizens (including sitting heads of states).

This post argues that one of the reasons behind African states’ early support for the establishment of the international court was the Lockerbie affair, which started in 1988 between Libya and three permanent members of the United Nations Security Council (namely France, United Kingdom and the United States). At the centre of the affair was the dispute between Libya and the three UNSC member states over the trial of two Libyan who were suspected of being involved in bombing of Pan American Flight 103 over Lockerbie, Scotland and killing more than 250 people. It is argued in this post that the lack of an international court with undisputed jurisdiction to investigate the suspects of Lockerbie bombing, combined with the manner that the United Nations Security Council handled Lockerbie Crisis, contributed to African states’ early supportive attitude and behaviour towards the establishment of the Court. The post begins by outlining the two dominant explanations offered for Africa’s early support of the Court before it introduces the third explanation the Lockerbie affair.

The two dominant explanations behind African States’ early support for the Court.

The first explanation was elaborated by the Legal Advisor of the then Organisation of African Unity, ‘OAU’ but now the African Union, Professor T. Maluwa, during the opening ceremony of the Rome Conference where the Rome Statute was adopted in 1998. His statement, quoted below, indicates that Africa’s support for the establishment of the Court was rooted in its people’s long history of victimhood.  He declared:

Africa had a particular interest in the establishment of the Court, since its peoples had been the victims of large-scale violations of human rights over the centuries: slavery, wars of colonial conquest and continued acts of war and violence, even in the post-colonial era. The recent genocide in Rwanda was a tragic reminder that such atrocities were not yet over, but had strengthened OAU’s determination to support the creation of a permanent, independent court to punish the perpetrators of such acts.[1]

Abdula Mohamed Omar, Minister for Justice in South African, whose country had just emerged from apartheid system added that

‘[i]n view of the crimes committed under the apartheid system, the International Criminal Court should send a clear message that the international community was resolved that the perpetrators of such gross human rights violations would not go unpunished’.[2]

The second explanation is linked to the indignation shown by delegations from several states attending the Rome Conference including African ones against the United States’ approach and proposals during the negotiations. Thus, this isolated the United States, while galvanising other states to support the establishment of the Court.

Third contributing factor – The Lockerbie Crisis

One of the historical contexts in which the Rome Statute was drafted was the Lockerbie affair. The affair pitted Libya against the three permanent members of the United Nations Security Council (the United Kingdom, the United States and France). The issue at hand was the extradition of two Libyan nationals, suspected of bombing Pan American Flight 103 over Lockerbie, Scotland and killing more than 250 people. Libya refused to extradite the two nationals to either the United States or the United Kingdom. The legal basis of this rejection was the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), which allows for a state either to prosecute or extradite. Libya indicated that it was ready to investigate and prosecute the two suspects and was even ready to invite international observers to the trial. The three superpowers were not convinced.

On 3 of March 1992, Libya filed an application with the International Court of Justice contending that neither the United Kingdom nor the United States had the right to compel it to surrender its nationals.[3] In the meantime, the United States and the United Kingdom reverted to the United Nations Security Council and imposed sanctions on Libya, instead of waiting for a decision by the International Court of Justice.

The then OAU disapproved of the manner in which the United Kingdom and the United States used their positions in the United Nations Security Council, imposing economic sanctions on Libya as punishment for its refusal to hand over the two suspects. The crisis dragged on for years, as there was no appropriate forum agreed upon by both the United States, France and United Kingdom on one hand and Libya on the other, to investigate and prosecute the two suspects. In fact, the former Libyan leader Colonel Gaddafi made reference to the need for an international criminal court when he told a Dutch television interviewer that ‘an international court is the solution with judges from America, Libya, England and other countries.[4]

George Odartey Lamptey, from Ghana, brought up the Lockerbie debacle during the U.N. Sixth Committee’s 41st meeting in 1994, while discussing the establishment of the International Criminal Court. He made this reference during the submissions of the amendments to the draft resolution A/C.6/49/L.24 made by his delegation.[5] The amendments introduced in the resolution a specific operative paragraph, stating that the Six Committee had decided to ‘convene a United Nations conference of plenipotentiaries for a period of 4 to 6 weeks in the spring of 1996, to elaborate and adopt the statute of an international criminal court.’ The majority of amendments made by Ghana referred to the urgent need for United Nations plenipotentiaries.

In explaining his delegation’s amendments and their urgency, Mr Lamptey pointed out that:

[h]ad such a court already been in existence, the problem that had soured relations between the Libyan Arab Jamahiriya and the United States of America, the United Kingdom and France would not have arisen. As it was, the Libyan people were suffering because they would not let their nationals go on trial before jurisdictions in which they had no confidence.[6]

Ghana’s amendments were supported by the Nigerian and Malaysian delegations, but opposed by France and India.

In 1998, OAU expressed its frustration at the Security Council’s handling of the conflict—and its refusal to remove the sanctions on Libya in particular—by adopting a resolution declaring that that member states were no-longer going to comply with the United Nations Security Council Resolutions 748 (1992) and 883(1993).[7]

Conclusion

The OAU resolution was passed on the 10 of June 1998, five days before the start of the Rome Conference. One can therefore not rule out the possibility that Lockerbie affair may have played a part in influencing the positions taken by African states during the Conference. This included the African states’ support for the establishment of a Court independent of the United Nations Security Council.  —especially with regards to the role of the Security Council.


[1] A/CONF.183/SR.6 para 115 p.104

[2] A/CONF.183/SR.2 para 14 p.65

[3] Questions of Interpretation and application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Instituting Proceedings ) General List No 88[1992]  ICJ

[4] Barbra Crossette, ’10 Years After Lockerbie, Still No Trial’ The New York Times (New York, 22 December 1998)

[5] Summary Record of the 41st Meeting of the Sixth Committee , U.N Doc A /C.6/49/SR.41, 12 December 1994 para 22.

[6] Summary Record of the 41st Meeting of the Sixth Committee , U.N Doc A /C.6/49/SR.41, 12 December 1994 para 22

[7] The Crisis Between the Great Socialist People’s Libyan Arab Jamahiriya and the United States of America and the United Kingdom , AHG/Dec.127 (XXXIV), 10 June 1998ICCICC

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The International Criminal Court in Libya: a new leeway for fair trial concerns in determining the admissibility of a case.

The “Game of Roles” paradox in presence of due process concerns

In the words of the Preamble of the Rome Statute, the International Criminal Court (ICC) was established to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC was conceived to prosecute individuals for crimes which were not effectively dealt with by domestic judicial systems, under the well known principle of complementarity.[1] The Statute empowers the Prosecutor to request arrest warrants and summons to appear, and grants the accused the right to challenge the admissibility of the case.

The practice of the Court has so far developed in an unexpected way. The ICC was able to play a role in situations of high political instability that was arguably outside the scope of its intended mandate. This is the case of Libya: a situation of grave international crimes perpetrated within an armed conflict that ultimately resulted in a regime-change. In this sort of situation, there is no risk that the alleged perpetrators be granted impunity. On the contrary, they rather risk to be subject to a victor’s justice that does not result in a trial respecting the basic international standards of due process of law.

The ICC intervened in Libya pursuant to Security Council Resolution 1970 of February 2011. Upon the Prosecutor’s request, in June 2011 Pre-Trial Chamber I issued three arrests warrants, against Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. Among other charges, the three individuals were accused of crimes against humanity for attacks against the civilian population taking part in demonstrations against Gaddafi’s regime. In October 2011, Muammar Gaddafi was killed in the battle of Sirte and his case was terminated. Following a Libyan challenge to ICC jurisdiction, the Pre Trial Chamber declared Saif Gaddafi’s case admissible, whereas it decided that Al Senussi be tried in Libya. In the latter case, Al Senussi’s Defence appealed to obtain a trial in front of the ICC, but the Prosecutor supported Libya’s arguments.

As a result, the situation experiences a controversial overturn in the expected roles of the relevant subjects. On the one hand, the ICC Prosecutor does not seek prosecution, but to defer the case to the local judiciary. On the other hand, the accused appeals against his own State, to affirm that it is unable or unwilling to genuinely prosecute him, in a sort of challenge of inadmissibility.

The due process thesis

In affirming Gaddafi’s case admissible and Senussi’s case inadmissible, the Court analysed Libya’s willingness and ability genuinely to prosecute the two accused under various grounds. It is worthwhile to focus on the contribution of the case to the due process thesis, i.e. the idea that the ICC could determine a case admissible on the basis of violations of the accused’s right to a fair trial.

Then Prosecutor Ocampo opposed the arguments based on due process concerns, stating that the Court cannot accept an admissibility challenge solely on the ground that the State’s procedures are not fully consistent with international standards of due process. Prosecutor Bensouda confirmed the same approach and expressly denied the possibility to challenge the Libyan willingness and ability based on fair trial rights alone.

On the contrary, Senussi’s and Gaddafi’s defence argued that the Court should declare a case admissible if the accused does not receive an acceptable trial in accordance with the basic international standards of due process.

The arguments against the due process thesis stem from the travaux preparatoires of the Rome Statute. At that time, the Italian proposal to include “full respect for the fundamental rights of the accused” among the criteria for deciding on issues of admissibility was rejected.[2] This demonstrates that the drafters did not conceive the ICC as a human rights court.

Furthermore, according to Art. 32 of the Vienna Convention on the Law of Treaties the travaux preparatoires are only supplementary means of interpretation. Relying on a textual interpretation of the Rome Statute, which is in fact the primary mean of interpretation of treaties, leading scholars have held that the due process criteria are not relevant to determine the admissibility of a case. However, the Statute arguably does not exclude the possibility for the Court to take fair trial concerns into account. Articles 17.1a and 17.2b of the ICC Statute are particularly relevant in this regard: according to the former, a case is admissible when the State of jurisdiction is “unwilling or unable genuinely to carry out the investigation or prosecution” whereas according to the latter, the willingness of such a State should be determined with regard to its “intent to bring the person concerned to justice”.

The ambiguous reference to the ‘genuineness’ of the investigation or prosecution allows the Court to have a certain margin of manoeuvre in its findings. Indeed, the meaning of ‘genuine’ is neither further clarified nor elaborated in the text, in stark contrast to other potentially vague terms (such as unwillingness or inability) or other alternative words that were considered by the drafters (such as good faith).

The Oxford English Dictionary defines ‘genuine’ as “having the supposed character, not sham or feigned”. This may allow a broad interpretation of the term that in fact might include due process concerns.

The expression “to bring to justice” bears similar ambiguities. Indeed, it can be interpreted as the intention to bring a person to court and face a trial, or just to “hold a person accountable” or, as affirmed by some scholars, directly “to convict”. The first interpretation is arguably supported by the references to “principles of due process recognized by international law” in the chapeau of art. 17.2. The second interpretation could be supported by the wording of art.17.2a, specifying the ‘purpose of shielding somebody from criminal responsibility’ as an indicator of unwillingness to prosecute. Still, the ambiguity of the text does not hinder the Court from using the first interpretation, including due process rights in the textual concept of “justice”.

Leeway for the due process thesis in Al-Senussi and Gaddafi case

In its decision on the admissibility of the case against Al-Senussi of 11 October 2013, the Pre-Trial Chamber emphasised that it is not just any alleged departure from, or violation of, national law that may form a ground for a finding of unwillingness or inability. The Chamber will take into account only those irregularities that may constitute relevant indicators of one or more of the scenarios described in article 17(2) or (3) of the Statute. In other words, the Chamber allows taking into account certain violations of national procedures, only in case those violations make such procedure inconsistent with the intent to bring the person of concern to justice.

In its judgment on the appeal of Al-Senussi of 24 July 2014, the Appeals Chamber went further. First, it disregarded the determination of fair trial concerns in the case at stake: Taking into account the text, context and object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se.

Then, relying on an interpretation of the wording “to bring to justice” similar to the one mentioned above, it expressly recognized that a grave violation of due process rights of the accused can make a case admissible, although only in extremely limited circumstances whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be “inconsistent with an intent to bring the person to justice.

In her recent report to the Security Council in November 2014, the Prosecutor seemed to have left room to the due process thesis: [A]s it concerns the trial of Abdullah Al-Senussi in Libya, […] The on-going violence and alleged threats to judges, prosecutors and lawyers do not augur well for a fair trial […] I will assess my options in due course, including whether to apply for a review of the judges’ decision up-holding Libya’s request that the case against Al-Senussi be tried in Libya.

Conclusions

The plainest interpretation of the Rome Statute’s wording, as well as its travaux preparatoires, may not support the view that due process concerns are relevant to the admissibility of a case before the ICC. However, the Libya situation is requiring the Court to play a delicate and unexpected role. By opposing the Prosecutor in claiming a fair trial in the Hague, an accused has challenged the structure provided by the Rome Statute. Both the Appeals Chamber and the Prosecutor have affirmed the possibility to consider grave violations of fair trial rights in determining the admissibility of a case. By ceasing to disregard fair trial abuses in domestic courts, the ICC would better contribute to fulfil its purpose to enforce international justice.

[1] Art. 1, Rome Statute of the International Criminal Court.

[2] Draft Proposal by Italy, UN Doc. A/AC.249/1997/WG.3/IP.4, 5 August 1997.

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