By Jennifer Trahan

[Jennifer Trahan is an Associate Professor, NYU, Global Affairs Program and Chair, American Branch of the International Law Association, International Criminal Court Committee.]

On July 28, 2015, a domestic court in Libya announced death sentences against Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, and Abdullah al Senussi, who served as intelligence chief. In total, 32 former Gaddafi-era officials were convicted, including 9 who were sentenced to death. Yet, observer accounts suggest the trials were deeply flawed, lacking key fair trial protections. The possibility that Libya will carry out the death sentences is clearly of huge concern to the defendants, but should also be of concern at the International Criminal Court.

On February 26, 2011, the UN Security Council referred the situation in Libya to the International Criminal Court. The Court originally issued 3 warrants for crimes committed during the 2011 uprising, against Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al Senussi, charging them with murder and persecution as crimes against humanity. The case against Muammar Gaddafi was terminated after his death.

Initially at issue in both the Saif Gaddafi and al Senussi cases was whether they should be tried in Libya or at the ICC, as the ICC will only try cases where national courts are “unwilling” or “unable” to conduct the trials. The Court ruled that Saif needed to be tried at the ICC, whereas al Senussi could be tried in Libya, as he was the subject of domestic proceedings and the ICC deemed Libya “willing” and “able” to carry them out. The ICC Appeals Chamber affirmed both rulings.

Yet, despite the ruling that Saif should be tried in The Hague, he was never surrendered, and remains in Libya. His situation is complicated by the fact that he is not held by any governmental authorities, but the “Zintan” militia.

As to al Senussi, this Author thinks the Court erred in its decision. The problem with the criteria of “willing” and “able” (or that a national court is not “unwilling” or “unable” to try the accused, as it is phrased in article 17 of the Rome Statute), is that it generally ignores an equally problematic third possibility – that a national court is “all too willing” to try someone (i.e., the situation of “overzealous” national proceedings). This is a situation one can certainly anticipate any time there has been a regime change and the new government wants to “get” at officials of the past regime – in other words, potentially the situation here. The rush to justice resulting in the Saddam Hussein execution is another example.

Human Rights Watch reports that al Senussi was denied adequate time to prepare his case, and adequate assistance of counsel. Saif, who was not even present for his trial, was apparently denied both these protections, and, additionally, while trials in absentia are permitted in Libya, the procedural safeguards required for them were apparently not provided. While the death penalty is permissible under Libyan law (and its imposition alone does not necessarily mean the trials were unfair), more and more countries categorically oppose the death penalty. At minimum, where it is a possible punishment, it is especially important that fair trial guarantees are scrupulously observed.

Should this turn of events be of concern to the ICC? Indeed.

Saif was supposed to be tried at the ICC, and he could end up executed in Libya. As a result of the ICC’s rulings, a “green light” was given to al Senussi’s trial in Libya, which has also resulted in a death sentence. If the sentences are affirmed on appeal and carried out, the ICC will have played a role in allowing two executions based on trials suspected of serious due process flaws.

There is still a chance for an appeal in Libya. Libya’s Supreme Court should independently and fairly review the verdict, particularly with a view to due process. But in the mean time, more pressure should be put to bear to ensure that Saif is transferred to The Hague (where he should have been all along), and al Senussi’s counsel should move to reopen the admissibility challenge based on newly discovered information (the events in Libya), or the ICC Prosecutor’s Office should do so.

The Appeals Chamber did leave an opening in its July 24, 2014 ruling (.pdf), suggesting that it would not utterly ignore due process violations by a national court, suggesting some concerns of an “all too willing” or “vengeful” national court:

It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2), and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). . . . As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article 17(2)(c).

To the extent the Appeals Chamber also suggested the national proceedings would have to be “completely lack[ing in] fairness” such that they fail to provide “any genuine form of justice,” before the ICC can be the proper venue, the Judges are setting the bar too high. (Alternatively, it is conceivable that, upon further inquiry, one might find even that bar met.)

It is true that the drafters of the Rome Statute specifically rejected making the lack of due process a ground for admissibility. Yet, the precedent they were dealing with at the time – the experiences of the ICTY and ICTR, where “unwilling” and “unable” trials respectively were the concern – simply do not reflect what has become the experience of the ICC. Moreover, it is quite possible –as the Appeals Chamber has done — to read a “due process” component into the language of article 17 of the Rome Statute.

Based on the events in Libya—flawed proceedings that suggest a lack of impartiality—the Court should now find the al Senussi case “admissible” at the ICC and order him transferred. If that happens, individual states and the UN Security Council should be prepared to help ensure the transfer actually happens.

These may not seem the most significant cases the ICC has on its docket (they probably aren’t), but it would be a bleak day if the ICC (and the UN Security Council) stand by and let these death sentences be carried out on cases that stemmed from the Security Council’s referral, and as to which the ICC was involved.