by Miša Zgonec-Rožej*
On 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
Today, 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.
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 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.