Predictive due process and the International Criminal Court.

• Author: Birnbaum, Samuel C.
• Position: I. Introduction into III. Libya and the Emergence of Predictive Due Process B. Signs of a Limited Due Process Jurisprudence, p. 307-333

ABSTRACT

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced to cede a case even to a state intent on subjecting the accused to a show trial. Drawing on recent ICC precedents, this Article argues that the Pre-Trial Chamber has begun to resolve this open question. The Court is now developing a system of "predictive due process. Under this new model of due process, the Court considers to a limited extent whether domestic criminal proceedings abide by international norms and, as part of the analysis, the Court tries to predict how the state in question would treat the accused if given control of the case. Taking a rational actor view of judicial behavior, this Article concludes that the rise of predictive due process is inevitable. From the perspective of ICC judges entrusted with the Court's institutional legitimacy, some consideration of due process factors is the optimal risk-averse strategy. Finally, proceeding from the conclusion that the ICC inevitably will use predictive due process, the Article argues that the ICC should learn from other courts that engage in similar inquiries. Specifically, the Court should seek guidance from the International Criminal Tribunal for the Former Yugoslavia's decision making under Article 11 bis, international economic law jurisprudence on standards of review, and the proportionality jurisprudence of international human rights tribunals. Although reliance on human rights law conflicts with stated ICC doctrine, this standard may give way in practice, if not in form.

TABLE OF CONTENTS I. INTRODUCTION II. HISTORY AND DOCTRINE OF COMPLEMENTARITY III. LIBYA AND THE EMERGENCE OF PREDICTIVE DUE PROCESS A. Summary of the Libya Decisions B. Signs of a Limited Due Process Jurisprudence C. Intensive, Predictive Analysis of State's Judicial Systems is Inevitable IV. IMPLICATIONS OF PREDICTIVE DUE PROCESS A. The International Criminal Tribunal for the Former Yugoslavia, Rule 11 Bis, and The Need for Special Panels and Post-Decision Monitoring B. International Economic Law and Variable Standards of Review C. International Human Rights Tribunals and the Uses of Proportionality V. CONCLUSION I. INTRODUCTION

Imagine that the International Criminal Court (ICC) has indicted a defendant from a small, developing country for war crimes and crimes against humanity. After the accused is transferred to The Hague, the state in which he committed his crimes nonetheless indicts him. Now controlled by the defendant's rival ethnic group, the state is intent on convicting and imprisoning the defendant. Indications are that the state has no intention of providing the accused with even minimal due process rights at his trial. Does the ICC have to transfer the defendant back to his home state?

Though this situation may seem far-fetched, it is entirely plausible through the doctrine of complementarity. In many situations, complementarity requires the ICC to abandon a case once a domestic prosecution has commenced. Whether the doctrine applies when the would-be domestic prosecution appears to violate the defendant's due process rights has remained an open question--or at least it has until recently. Drawing on new precedents, this Article identifies a new trend that may resolve such problems. Through the emerging doctrine of "predictive due process," the ICC has signaled its openness to account for certain, limited due process concerns when evaluating complementarity-based challenges to its jurisdiction. It is doing so by making predictive judgments about how the state would treat the accused if allowed to proceed. The advent of this new model of due process is one of the most significant recent developments in the ICC's evolving relationship with the states parties of the Rome Statute.

Complementarity is one of the cornerstones of the International Criminal Court. Under the Rome Statute, which established and regulates the functions of the ICC, a case is admissible only when the state party of which the accused is a national is unable or unwilling to prosecute. (1) The result is that the ICC is a court of last resort that is complementary to the jurisdiction of national courts. (2) This innovation was critical in securing state support for the Rome Statute, (3) and today, in an era where many accuse the ICC of political motivated prosecution, (4) it is an important tool for bolstering the Court's legitimacy. (5) Complementarity is also more than a legal principle. Over the past ten years, state primacy has become one of the guiding lights for the Office of the Prosecutor of the ICC. Former Prosecutor Luis Moreno-Ocampo himself has often emphasized that a sign of the ICC's ultimate success would be that the Court has no cases because all possible cases are being prosecuted in domestic courts. (6)

The Rome Statue does little to define complementarity's contours. Article 17 of the Statute, which lays out complementarity, provides only a few paragraphs of information. Among the questions the Rome Statute leaves open are, whom and what exactly must the domestic state be investigating in order to render the corresponding ICC case inadmissible? And when, legally, is a state "unwilling" or "unable" to prosecute? Over the past ten years, these questions and others have emerged as flashpoints, as litigants have challenged the permissibility of cases brought in the ICC on complementarity grounds, arguing that state efforts to investigate and prosecute should abrogate ICC investigations and indictments. The result has been a series of decisions that have resolved many of the outstanding questions about complementarity. For example, it is now clear that a state investigation may only render an ICC case inadmissible if the state is investigating the same person for "substantially the same conduct as" is the Prosecutor of the ICC. (7)

Today, one of the last remaining areas of ambiguity regarding complementarity is the role of due process considerations in the Court's legal analysis. Article 17 of the Rome Statute was written primarily to ensure that the ICC would retain the ability to hear a case when a domestic state was intent on protecting the accused by engaging in a sham investigation or prosecution. (8) But what about the inverse problem? What if a state is overzealous and wants to or cannot help but to subject the accused to an investigation and prosecution that is unconstrained by international norms of due process? In the worst-case scenario, what if the state intends to subject the accused to a show trial? Would the ICC retain the ability to hear a case in such circumstances? (9) In the early years of the ICC, most scholars subscribed to the so-called due process thesis, which contends that under Article 17 a state prosecution that does not abide by international due process norms cannot trigger complementarity. (10) However, in an influential 2006 article, Professor Kevin Jon Heller made a compelling case for the opposite conclusion--that Article 17 does not allow for due process considerations and that a show trial actually could render an ICC case inadmissible. (11) Since that time, academics have debated without resolution whether and how much of a role due process norms should have in complementarity analysis. (12)

In the last two years, the ICC has issued several decisions on complementarity that have the potential to advance the debate over due process. Each of the decisions stemmed from the ICC's involvement in Libya. In 2011, pursuant to a UN Security Council referral, the Prosecutor of the ICC sought warrants for the arrest of Saif Al-Islam Gaddafi, the son of Muammar Gaddafi, and Abdullah Al-Senussi, Libya's widely-feared former chief of intelligence. (13) Both stand accused of crimes against humanity stemming from their participation in the atrocities perpetrated by the Gaddafi regime. (14) But after Libyan rebels, assisted by an international air campaign, overthrew the Gaddafi regime, the new Libyan government insisted that Libya would itself prosecute Gaddafi and Senussi. Litigation over complementarity at the ICC ensued. Ultimately, the ICC issued decisions addressing Libya's complementarity challenges in each of the case. The Pre Trial Chamber, and later the Appeals Chamber, held that the international case against Gaddafi remained admissible but found the ICC case against Senussi was inadmissible under Article 17. In the process, the Court discussed extensively the role of due process concerns in complementarity.

Drawing on these decisions and others, this Article concludes that the ICC is beginning to move toward a new model of due process jurisprudence. In contrast with many of the recent examinations of complementarity, this Article concludes that the ICC remains open to considering the due process implications of granting a complementarity challenge. However, increasingly, the ICC Pre-Trial Chamber is engaging in "predictive" due process analysis--it examines the behavior of the state challenging complementarity and, based on the evidence before it, makes predictions about whether the state will be willing and able to abide by certain due process norms in its future investigation and prosecution of the accused. As part of this predictive jurisprudence, the Court is open to conducting a reasonably invasive look at the behavior of the state in question. Though the Court's analysis is not...