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THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME
1.2 Case Law of the ICC: Al-Senussi Case
As seen above, the relevance of violation of human rights (due process guarantees)
at the domestic level and its relation to admissibility of the proceedings before
the ICC was widely foreseen in theory. The first opportunity to let the doctrinal
approaches be tested in practice came in the case of Abdullah Al-Senussi, former
Chief of Intelligence Service during the Gaddafi regime.
On 27 June 2011 the PTCH I issued a warrant of arrest for Al-Senussi for
commission, as an indirect perpetrator, of murder and persecution as crimes against
humanity in Benghazi during February 2011.
36
On April 2013 Libya filed an
admissibility challenge under Article 19 of the Rome Statute, claiming that its judicial
system is actively investigating Al-Senussi and his case is therefore inadmissible before
the ICC.
37
The decision of the PTCH I on the admissibility of the case against Al-
Senussi was issued on 11 October 2013.
38
The PTCH I had to deal with arguments of
the defence alleging that the domestic proceedings against the defendant were being
conducted in violation of his fundamental rights (the defence pointed to unjustified
delays, lack of legal representation, and lack of independence and impartiality),
and the case should therefore be held before the ICC. The defence submitted that
considerations of due process are inherent in the assessment of a State’s ability and
willingness to conduct genuine proceedings.
39
Nevertheless, the Court confirmed the position presented by the Prosecutor and
Libya, and emphasized that alleged violations of the accused’s procedural rights are
not
per se
grounds for a finding of unwillingness or inability under Article 17 of
the Statute. According to the PTCH, in order to have a bearing on determination,
any such alleged violation must be linked to one of the scenarios provided for in
Article 17(2) or (3) of the Statute.
40
This means that violation of procedural rights
would be relevant only when it is inconsistent with the intent to bring the defendant
to justice. In conclusion, the PTCH ruled that the case against Mr. Al-Senussi is
inadmissible before the Court pursuant to Article 17(1)(a) of the Statute.
Al-Senussi subsequently filed an appeal containing three grounds, the first one
of which is relevant for the purpose of this article.
41
Within the first ground of
appeal, the defence raised an argument concerning lack of contact between Al-
Senussi and his legal counsel; it stressed that the ACH “should not decide this
36
ICC-01/11-01/11-1, ICC 01/11-01/11-4. For brevity reasons, decision shall be referred to only in
shortened version.
37
ICC-01/11-01/11-307.
38
ICC-01/11-01/11-466.
39
Ibid.
, para 220.
40
Ibid
., para 235.
41
The first ground of appeal: The Pre-Trial Chamber erred in law and fact and abused its discretion in
finding that Libya is not unwilling and unable genuinely to carry out the proceedings against Mr. Al-
Senussi within the meaning of the provisions of Article 17. ICC-01/11-01/11-565, para. 124.