Yesterday, Chatham House in conjunction with Doughty Street Chambers hosted a lecture on “The ICC and Libya: Complementarity in Conflict”. The featured speakers were Professor Kevin Jon Heller from the School of Oriental and African Studies, Melinda Taylor, defence counsel and former head of the Office of Public Counsel for the Defence at the ICC, and Carla Ferstman, Director at REDRESS.
The discussion centred around the admissibility decisions in the cases of Saif al-Islam Gaddafi and Abdullah al-Senussi before the ICC. In July 2014, the Appeals Chamber held that the case against al-Senussi was inadmissible and that the Libyan authorities were willing and able to try him. Earlier, in May 2014, the Appeals Chamber reached the opposite decision in the case of Gaddafi holding that the case was admissible and ordering his transfer from detention in Zintan to the ICC. Continue reading
Abdullah Al-Senussi (c) Libya Herald
Yesterday, the Appeals Chamber of the International Criminal Court (ICC) confirmed that the case against Abdullah Al-Senussi is inadmissible.
On 11 October 2013, Pre-Trial Chamber I had declared the case against Mr Al-Senussi inadmissible on the grounds that the Libyan authorities were currently investigating Mr Al-Senussi and that they were willing and able genuinely to carry out domestic proceedings.
In rejecting the defence appeal, the Appeals Chamber held that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi, or in the exercise of its discretion in the conduct of the proceedings and in the evaluation of the evidence. Judges Usacka and Song appended respective separate opinions agreeing with the conclusion of the majority but formulating their own reasoning on the correct interpretation of the ‘same person, same conduct’ test, which must be satisfied to conclude that a given domestic authority is investigating or prosecuting the same case as that before the ICC.
Mr Al-Senussi held the rank of colonel in the Libyan Armed Forces and served as Muammar Gaddafi’s chief of intelligence before the fall of the regime during the Libyan uprising in 2011. The Prosecution had charged Mr Al-Senussi with murder and persecution as crimes against humanity for his involvement in utilising the State security forces to target the civilian population in an attempt to quell the revolution.
Mr Al-Senussi was charged alongside Muammar Gaddafi (since deceased) and Saif al-Islam Gaddafi. The latter also challenged the admissibility of his case before the ICC but the Appeals Chamber held on that occasion that the case was admissible.
(c) Ian Waldie/Getty Images
The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, today reopened the preliminary examination of the situation in Iraq following the submission of a 250-page dossier of new information in January by the European Centre for Constitutional and Human Rights and Public Interest Lawyers. Philip Shiner, human rights solicitor at Public Interest Lawyers, claims that the dossier reveals evidence of more than 400 cases of mistreatment or killings by members of the UK armed forces in Iraq. Former Defence Secretary Geoff Hoon and former Armed Forces Minister Adam Ingram are named in the file.
According to the OTP’s Policy Paper, the purpose of a preliminary examination is to
“collect all relevant information necessary to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation.”
Under Article 53(1) of the Rome Statute, the Prosecutor will examine issues of jurisdiction (temporal, material, and either territorial or personal jurisdiction); admissibility (complementarity and gravity); and the interests of justice in order to determine whether there is a reasonable basis to proceed.
Andrew Cayley QC, director of the Service Prosecuting Authority (SPA), has indicated that the ICC may run into issues of admissibility. The ICC’s regime is complementary to that of domestic systems; it may only intervene where a State is unable or unwilling genuinely to carry out investigation or prosecution. The Iraq Historic Allegations Team was set up in 2010 “to review and investigate allegations of abuse of Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009.” Where investigations conclude that there is sufficiently credible evidence, cases can be referred to the SPA for prosecution. Continue reading