CYIL 2015

ONDŘEJ SVAČEK 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.

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