On 26 February 2011, the United Nations Security Council voted unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor to hold accountable those responsible for attacks on civilians by forces under the control of those responsible. After conducting a preliminary examination, the ICC Prosecutor concluded on 3 March 2011 that there is a reasonable basis to believe that crimes under the ICC’s jurisdiction have been committed in Libya, and decided to open an investigation.
On 27 June 2011, an ICC arrest warrant was issued for Saif al-Islam Gaddafi, the son of Muammar Gaddafi. It is alleged that as the de facto Libyan Prime Minister, Saif al-Islam Gaddafi committed crimes against humanity. On 27 June 2011, Pre-Trial Chamber I found that there were reasonable grounds to believe that, under Article 25(3)(a) of the Rome Statute, Saif al-Islam Gaddafi was criminally responsible as an indirect co-perpetrator for murder and persecution under Articles 7(1)(a) and 7(1)(h) of the Statute. The arrest warrant remains unserved, despite repeated efforts by the ICC to have the Libyan authorities bring Saif al-Islam Gaddafi to The Hague.
The glitch in extraditing Saif al-Islam Gaddafi was that the Libyan government did not have him in its possession. He was being detained in Zintan by the Zintani authorities/militia. When it became obvious that Saif al-Islam Gaddafi would be tried in Zintan and would inevitably be handed a death sentence, concerted efforts were made by Saif al-Islam Gaddafi’s ICC-appointed legal team to discredit the Zintani judicial process. To that extent, Saif al-Islam Gaddafi’s legal team was successful. On 31 May 2013, Pre-Trial Chamber I rejected Libya’s challenge to the admissibility of the case against Gaddafi, finding that the Libyan government was unable to carry out the prosecution of Saif al-Islam Gaddafi. Although the Pre-Trial Chamber I concluded that it was not necessary to address Libya’s “willingness” to prosecute Saif al-Islam Gaddafi, or the issues submitted by the Defence about the impossibility of a fair trial for him in Libya, it is apparent that in any event the Zintani proceedings were incapable of providing a fair trial either.((Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi, 31 May 2013, paras. 215-16.))
Abdullah Al-Senussi did not fare so well. He was detained in Tripoli and would be tried by a court that carried the imprimatur of the Libyan government. Irony of ironies, on 11 October 2013, Pre-Trial Chamber I found that Libya is not unwilling or unable genuinely to carry out its proceedings in relation to the case against Abdullah Al-Senussi.((Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case Against Abdullah Al-Senussi (11 October 2013), para. 311.)) This was confirmed on appeal on 24 July 2014, with the Appeals Chamber finding that the conclusions of the Pre-Trial Chamber were reasonable in relation to Libya’s ability to conduct its proceedings.((Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11 OA6, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”, 24 July 2014, para. 297.)) Presumably then the Libyan court would afford Abdullah Al-Senussi his basic fair trial rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR). Poppycock. In a previous post, I discussed this schizophrenic complementarity decision in this case.
In any event, the Zintani authorities initially allowed Saif al-Islam Gaddafi to participate via video link in his trial in Tripoli, though there are reports that this participation was sporadic. Effectively, Saif al-Islam Gaddafi was tried in absentia. Predictably, the Tripoli court convicted him, imposing a death sentence.. Meanwhile, Saif al-Islam Gaddafi’s ICC-appointed legal team persisted in its efforts to have him brought to the ICC to be prosecuted for the crimes against humanity of murder and persecution. After all, the evidence against Saif al-Islam Gaddafi by all accounts seems less than convincing to meet the high standard of proof for a conviction, but even if convicted, he assuredly would avoid the hangman’s noose. A risk well worth taking.
And then came the press conferences.
On 27 June 2016, Karim Khan, QC, a member of Saif al-Islam Gaddafi’s legal team announced (as quoted in The NewArab) that he will submit a filing with the ICC “seeking to declare the case inadmissible to have the charges dropped” because “The reality is that a trial has taken place. He has been tried and convicted in Libya. It’s a clear principle of law that one cannot be tried twice for the same offence.” Khaled Zaidy, another lawyer for Saif Al-Islam Gaddafi, added “The ICC should not be a substitute for local courts, but base itself on the principle of complementarity.” Then, on 7 July 2016, Mr. Khan was quoted in the UK newspaper The Guardian saying that Saif al-Islam Gaddafi had “been released from Zintan detention. The release, I’m told, was on 12 April – there was an order from the central government.” Khan further stated: “He’s in Libya, he’s in good health, he’s safe and he’s well.” The Guardian could not independently verify Mr. Khan’s claims. Neither the UN-backed government in Tripoli nor the Zintani authorities had commented, though rumors abound that Saif al-Islam Gaddafi remains detained in Zintan.
I have not reviewed any of the evidence against Saif al-Islam Gaddafi in the ICC case. I did not follow the proceedings against Gaddafi other than what was written in the press. I have not discussed these news-breaking events with Saif al-Islam Gaddafi’s ICC-appointed legal team. And I do not intend to delve into any of the specifics as to whether an amnesty was granted to Saif al-Islam Gaddafi. My interest is more theoretical.
Having dealt with the issues of amnesty, pardons, and ne bis in idem (double jeopardy) in the representing Ieng Sary before the ECCC, the Saif al-Islam Gaddafi case presents an excellent opportunity to explore these issues again. In my opinion, customary international law has not crystallized as to the application of domestic amnesties to jus cogens crimes. As such, a reasonable argument can be made that they are binding in both domestic and international courts. The issue related to the principle of ne bis in idem, being jurisdictional, is also quite interesting given the facts of this case – as we know them. No doubt, these issues will be thoroughly vetted by the formidable legal team Saif al-Islam Gaddafi has assembled. And no doubt the ICC Prosecutor is not going to back down – at least not concerning these legal issues – unless she opts to summarily dismiss the charges for lack of evidence (I cannot imagine that she would concede to the application of a Libyan amnesty at the ICC).
In subsequent posts I will first discuss amnesties and pardons in international criminal law, followed by a post on ne bis in idem and issues of double jeopardy. In the fourth and final post I will probe into the issues of amnesty and the principle of ne bis in idem in the context of the ICC. I hope to shed some clarity on whether the ICC can or should accept an amnesty (pardon is more accurate) by the internationally recognized Libyan government for Saif al-Islam Gaddafi, and/or whether double jeopardy attaches, militating against Saif al-Islam Gaddafi being tried at the ICC.
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