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.

Taylor advanced three reasons for the different outcomes reached by the Appeals Chamber: (1) the factual differences between the cases, particularly the comparative scope of the cases and the evidence adduced by Libya; (2) the detention of Gaddafi by militia in Zintan and their refusal to cooperate with the Libyan authorities and order his transfer to Tripoli; and (3) the position of the ICC Prosecutor herself whose office endorsed the Libyan Government’s claims with regard to al-Senussi but not Gaddafi.

Heller highlighted the unseamly nature of the decisions by pointing out the contradictory position adopted by the Appeals Chamber with regard to assessing the position of the defendants. In Gaddafi’s case, his lack of access to defense counsel was one of the reasons that the Chamber held that the case was inadmissible; al-Senussi’s identical lack of representation was dismissed by the Chamber on the basis that it would be resolved in the future when the security considerations permitted it.

Thought was also given to the future of the cases going ahead. Taylor pointed out that Libya has already publicly stated its intention to challenge the admissibility of the case against Gaddafi (regardless of whether a second challenge is permitted by the Rome Statute). For the moment, Gaddafi remains in Zintan and orders to transfer him to The Hague have not been implemented. This fact was lamented by all present, including iLawyer John Jones QC, who is acting as defence counsel to Gaddafi. He criticised the ICC’s failure to “call a spade a spade” and refer the non-compliance by Libya to the UN Security Council. Ferstman concluded that even if Gaddafi were transferred to The Hague, this would not resolve the ICC’s problems as it is doubtful whether Libya would cooperate with the Prosecutor and consent to the conduct of investigations.

In al-Senussi’s case, Heller discussed the possibility of requesting the Pre-Trial Chamber to reconsider its decision on the basis of new facts, namely the deteriorating security situation in Libya. Ultimately, he concluded that the Rome Statute only provides the Prosecutor with this right and not the Defendant.

An unofficial transcript of the meeting is available here.