The International Criminal Court’s Libya Case(s)—The Need for Consistency with International Human Rights as to Due Process and the Death Penalty

Abstract

The icc’s Libya cases raise interesting questions about the icc’s interaction with national jurisdictions that retain the death penalty. In the case against Abdullah Al-Senussi, the icc ruled he could be tried in Libya—his case was ‘inadmissible’—despite Libya retaining the death penalty and despite fair trial concerns. Yet, Rome Statute Article 21.3 directs the Court to be consistent with international human rights. Is it consistent with international human rights to indirectly authorize trial in a country that retains the death penalty, under conditions that cannot guarantee at least core due process protections? This article argues that it is not. Furthermore, this article argues that the Appeals Chamber in Senussi was insufficiently concerned with due process violation in the national jurisdiction—in a situation one could well-anticipate a former high-level regime official would not receive a fair trial post-regime change.