296 / 464
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CYIL 6 ȍ2015Ȏ
appeal without counsel being able to consult Mr. Al-Senussi. It would be a flagrant
breach of his human rights and all standards of due process under Libyan law and
international law.“
42
The ACH refused this argument with reference to specificities
of the admissibility proceedings before the ICC and stressed that internationally
recognized human rights do not necessarily extend all rights provided in Article 67
of the Rome Statute (
i.e.
rights of the accused during the trial stage) to persons who
have not yet been surrendered to the Court.
43
On other hand, the ACH recalled that,
in the context of admissibility proceedings, the Court is not primarily called upon to
decide whether in domestic proceedings certain requirements of human rights law
or domestic law are being violated.
44
Finally, the ACH stressed that such violations
(
e.g.
lack of legal representation during the admissibility proceedings) would not
reach the high threshold for finding that Libya is genuinely unwilling to investigate
or prosecute Al-Senussi.
45
Under the first ground of appeal, the defence further claimed that the PTCH
failed to find that Mr. Al-Senussi is not being brought to justice in proceedings that
are independent and impartial.
46
The defence argued that lack of independence and
impartiality (of the domestic proceedings) in the definition of unwillingness under
Article 17(2)(c) of the Statute leads to admissibility of the case before the ICC. The
ACH replied that, at first sight, the text of Article 17(2)(c) and the chapeau of Article
17(2) could potentially be read to support the position argued for by the defence,
namely that a State is genuinely unwilling to carry out the investigation or prosecution
if it does not respect the fair trial rights of the suspect; nevertheless a closer analysis
of the text, context, object and purpose of Article 17(2)(c) demonstrates that this
interpretation is not sustainable.
47
In the crucial part of its decision the ACH stressed the purpose of the exception
to inadmissibility (
i.e.
unwillingness), which is preventing a suspect from evading
justice and not the guarantee of fair trial rights. Indeed, the Court was not established
to be an international court of human rights, sitting in judgment over domestic legal
systems to ensure that they are compliant with international standards of human
rights.
48
Violations of the rights of the suspect
per se
do not amount to unwillingness:
42
Ibid
., para 140.
43
Ibid
., para 147.
44
Ibid
., para 190.
45
Ibid
., para 191.
46
Ibid
., paras 206-207. The defence argued that Mr. Al-Senussi will be convicted and sentenced to death
in proceedings falling well below any acceptable standard; it alleged that he had been imprisoned
incommunicado, without a lawyer throughout his proceedings, cut-off from his family, interrogated,
mistreated to confess, without any visit from his ICC lawyers, guarded by his alleged victims, with
armed militia present, against a backdrop of immense public pressure for his execution as revenge for
the past.
47
Ibid.
, paras 213-214.
48
Ibid
., para 219.