Event: The ICC and Libya, Complementarity in Conflict

Chatham House Royal Institute of international affairsYesterday, 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

ICC Appeals Chamber Confirms Al-Senussi Case Is Inadmissible

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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.

Saif Gaddafi Must Be Tried in The Hague

by Miša Zgonec-Rožej*

Seif-al-Islam GaddafiOn 21 May, the Appeals Chamber of the International Criminal Court (ICC) in The Hague rejected Libya’s bid to prosecute Saif Gaddafi domestically and confirmed that he should be tried by the ICC. The ICC’s decision is the correct one and hopefully Libya will comply with it.

According to the Rome Statute, the ICC cannot try a case where the same case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unable or unwilling genuinely to carry out the investigation or prosecution. The Appeals Chamber confirmed that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC.

The decision comes as no surprise. The situation in Libya has been in a state of near-anarchy, characterized by lawlessness, insecurity, and an ineffective police and judicial system. UN and human rights organizations report widespread abuses, and the government has been unable to control the militias who continue to exert their influence and pressure on Libyan authorities, including the judiciary. Continue reading

ICC Appeals Chamber Confirms Admissibility of the Case Against Saif Al-Islam Gaddafi

Saif Al-Islam GaddafiToday, the Appeals Chamber of the International Criminal Court (ICC) delivered its judgment confirming the decision of the ICC Pre-Trial Chamber I declaring admissible the case against Saif Al-Islam Gaddafi. The Appeals Chamber’s judgment was issued by majority, with a separate concurring opinion by Judge Sang-Hyun Song. Judge Anita Ušacka adopted a dissenting opinion.

On 31 May 2013, Pre-Trial Chamber I had rejected Libya’s challenge to the admissibility of the case against Saif Al Islam Gaddafi and reminded Libya of its obligation to surrender the suspect to the Court. Libya appealed this decision on 7 June 2013.

The Appeals Chamber was of the view that the Pre-Trial Chamber did not err in either fact or law when it concluded that Libya had fallen short of substantiating, by means of evidence of a sufficient degree of specificity and probative value, that Libya’s investigation covers the same case that is before the Court.

The Appeals Chamber also rejected Libya’s arguments that the Pre-Trial Chamber had made procedural errors when reaching its decision. On that basis, the Appeals Chamber confirmed the Pre-Trial Chamber’s decision, according to which Saif Al-Islam Gaddafi’s case is admissible before the ICC.

Gaddafi Brothers’ Trial Begins in Libya

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Saif al-Islam Gaddafi after his capture in 2011 (c) The Guardian

The trial of Saif al-Islam and Saadi Gaddafi, sons of deposed Libyan dictator Muammar Gaddafi, begins today in Tripoli. The brothers are accused of coordinating a campaign to murder, torture, and bombard civilians during the Libyan civil war in 2011. They are also accused of plundering state resources in order to fund their extravagant lifestyles.

They are being tried alongside Abdullah al-Senussi, the former intelligence chief to Muammar Gaddafi, as well as two former prime ministers and 34 senior officials of the old regime.

Security concerns have caused the trial to be moved to the maximum security Al Hadba prison. Yet, when the trial commences, Saif al-Islam will not be present as

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the rebel militias responsible for his detention in Zintan province continue to refuse to hand him over. He will be tried instead by video link.

Both Saif al-Islam Gaddafi and Abdullah al-Senussi are the subject of proceedings before the International Criminal Court. In May 2013, judges ruled that Saif al-Islam should be surrendered to The Hague but in October 2013, found that Libya is fit to try al-Senussi for themselves. The latter decision is being appealed by defence counsel for Mr al-Senussi.