Predictive due process and the International Criminal Court.

AuthorBirnbaum, Samuel C.
PositionContinuation of III. Libya and the Emergence of Predictive Due Process B. Signs of a Limited Due Process Jurisprudence through V. Conclusion, with footnotes, p. 333-358

Addressing the second limb of the admissibility test for the first time, the Pre-Trial Chamber in Gaddafi was not guarded about its reliance on predictive judgments about the capacity of the Libyan justice system. In determining that the inability prong was satisfied, the Chamber's analysis was arguably framed as a prediction about whether Libya would be able to prosecute Gaddafi, not a statement about its inability, thus far, to do so: "The Chamber is of the view that [Libya's] national system cannot yet be applied in full in areas or aspects relevant to the case." (110) Though, again, this statement could be read as a reference to the present state of the Libyan judiciary, its full implication is inherently predictive. The Court examined the Libyan judiciary and made a predictive judgment about whether it would be able to handle the Gaddafi trial. The remainder of the opinion contains similar predictive references. In paragraph 207, the Chamber noted, with respect to Libya's inability to obtain Gaddafi, that it "[was] not persuaded that this problem may be resolved in the near future." (111) In paragraph 211, the Chamber explained that it was not "persuaded" that Libyan authorities had the capacity to ensure protective measures of witnesses (and the Libyan proceedings had not reached the point where witnesses were being called). (112) And in paragraph 214, the Court concluded that Libya's failure to provide Gaddafi with a lawyer was relevant to the inability analysis because Libya's submissions "[fell] short of substantiating whether and how the difficulties in securing a lawyer ... may be overcome in the future." (113)

The Pre-Trial Chamber in Senussi was in some respects schizophrenic about its desire to move into predictive analysis, but it, too, ultimately engaged in numerous instances of predictive inquiry. Although the Court took pains in some parts of the opinion to avoid speculation about whether Libya would afford Senussi due process guarantees, it made predictive inferences openly in others. The Chamber's analysis of the unwillingness question (to the extent it is distinguishable from the inability inquiry) was more closely grounded in the present. In dismissing the defense's argument that Libya's failure to provide a lawyer to Senussi evinced unwillingness, the Chamber noted that "it appears that Mr. Al-Senussi's right to legal representation has been primarily prejudiced so far by the security situation in the country," (114) thus attempting to establish unwillingness as a matter of intent, which is more easily established without resorting to prediction or intensive analysis of the Libyan judicial system. One could infer from the structure of the opinion, however, that lurking under the surface of this statement was a judgment that Libya would provide Senussi with a lawyer in the future once the security concerns abated. (115)

The Pre-Trial Chamber's analysis of the inability question centered squarely on a predictive assessment of whether Libya will be able to try Senussi consonant with due process guarantees. Libya's submissions on the inability point were future oriented. For example, Libya noted with respect to its mechanisms for protecting witnesses that "the sufficiency or otherwise of such measures should not be judged prematurely and speculatively before the need for protective measures has arisen." (116) In rendering its decision on whether the inability criterion was satisfied the Chamber made an explicitly predictive judgment--that the Libyan judicial system had the capacity to guarantee to Senussi sufficient due process rights. The Chamber explained that "Libya appears to be in a position to address the ongoing security difficulties in order that the proceedings against Mr Al-Senussi not be hindered," (117) and, similarly, that there is "[n]o indication that collection of evidence and testimony has ceased or will cease because of unaddressed security concerns for witnesses in the case against Mr Al Senussi." (118)

The Appeals Chamber in Senussi did not rely on predictive analysis to the same degree as the Pre-Trial chamber in Senussi. However, this is unsurprising given the Pre-Trial chamber's greater emphasis on adjudicating factual matters. The Appeals Chamber did explicitly validate the Pre-Trial's use of predictive analysis. The Chamber noted that "it was not unreasonable for the Pre-Trial Chamber to conclude that, although in the past it had not been possible to appoint counsel for Mr Al-Senussi because of the security situation, there was a prospect of this happening in the future. Although the Pre-Trial Chamber's conclusion did involve an element of prediction, this is not unreasonable for issues such as the present one." (119)

Although the Court has not fully embraced predictive analysis in any of its opinions, the Court's recent cases show that the line between officially permissible and impermissible reasoning is extremely thin. Though the Court has stated in the past that complementarity decisions must be made on the basis of the facts as they exist at the time of the challenge, what actually comprises the nucleus of "facts" that may be considered under this doctrine? Fully instantiated occurrences certainly qualify: whether the defendant has been provided with a lawyer, for example, is obviously valid evidence. But what about occurrences that bear on the likelihood of something happening in the future? For example, is an assurance from the state that the defendant will be given a lawyer permissible evidence of the state's compliance with due process norms? And finally, what about future-oriented inferences from present-based facts? For example, can the Court infer from the fact that a state generally does not provide counsel to defendants charged with war crimes that the defendant at issue will not be afforded counsel? These categories of questions are not analytically distinct and they tend to blend together in practice. Moreover, there is little in the Court's own jurisprudence that would shed light on which are and are not permissible. Thus, in the Libya decisions, there was ample room for the Court to play with the line it had previously set with regards to predictive reasoning and to make almost probabilistic determinations about the likelihood of the state engaging in particular kinds of behavior in the future. In practice, it is difficult to understand these kinds of determinations as anything but predictive analysis.

  1. The melding of the unwillingness and inability inquiries: Strong evidence of the Court's shift toward predictive due process analysis is found in the Court's structuring of the unwillingness and inability inquiries in Gaddafi and Senussi. Since the Rome Statute was first drafted, the unwillingness and the inability prongs under Article 17(1) have been considered two distinct inquiries, an understanding that was confirmed by the Pre-Trial Chamber in Katanga, (120) Unwillingness is determined by reference to the factors outlined in Article 17(2), whereas the inability inquiry is guided by the standard laid out in 17(3). The Gaddafi opinion followed this rule strictly, considering inability exclusively and deliberately refraining from reaching the unwillingness inquiry. (121) However, there is evidence in the Senussi opinion that this norm may be giving way, in practice if not exactly in form.

Although the Pre-Trial Chamber's Senussi decision's analysis of Article 17 began by distinguishing between unwillingness and inability, the Pre-Trial Chamber concluded that "the two limbs of the admissibility test, while distinct, are nonetheless intimately and inextricably linked," and that evidence relevant to each limb may overlap. (122) Thus, the Chamber proceeded to analyze the vast majority of the claims put forward by the parties without regard to whether they pertained to unwillingness or inability, and in several instances the Chamber appeared to use the two terms interchangeably. (123) The opinion's final section, in which the Court separates unwillingness from inability before rendering its final holdings, is truncated and conclusory. (124)

Although this shift may seem surprising, given the Court's prior insistence on the distinctiveness of the two inquiries, it is a logical consequence of the Court's use of predictive due process analysis. Analysis of due process concerns necessarily entails a subjective, fact-intensive inquiry of the kind typically associated with human rights tribunals. To adjudicate due process concerns, the Court cannot simply focus on the literal meanings of "unwilling" and "unable" in the statute--under international law, it must conduct something closer to an all-things-considered inquiry into whether Libya's alleged actions were permissible limitations on the rights of the defendants. (125) This kind of inquiry does not fit neatly into the unwilling or unable framework, as it entails questions into both the capacity and the intent of the state challenging complementarity. Thus, the peculiar structure of the Senussi opinion can be understood as a product of the Court's willingness to engage in due process analysis. (126)

  1. Intensive, Predictive Analysis of State's Judicial Systems is Inevitable

    The previous subpart of this Article attempted to show that the ICC is moving toward a system in which the Court makes subjective assessments of the judicial systems of states challenging complementarity, including predictive judgments about the likelihood that states will abide by certain basic due process principles. This subpart argues that such a shift is inevitable. Applying a rational actor view to the ICC that treats ICC judges as autonomous actors with distinct preferences, it becomes clear that the panels of judges deciding complementarity challenges have strong incentives to engage in predictive analysis of state judicial systems and, more generally, to assess whether domestic legal systems are willing or...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT