Amnesty Part IV: The Case Against Saif al-Islam Gaddafi Before the ICC

In the previous post I examined the principle of ne bis in idem / double jeopardy, setting out the general characteristics, underlying rationale, exceptions to the principle, and its transnational applications.

This series on Saif al-Islam Gaddafi and the ICC was prompted by the press conference organized by Gaddafi’s lawyers calling for the ICC to dismiss the crimes against humanity (murder and persecution) charges against Gaddafi for which he has been indicted.Double_Jeopardy!_-771Situation in the Libyan Arab Jamahiriya, ICC-01/11, Warrant of Arrest for Saif Al-Islam Gaddafi, 27 June 2011 available at https://www.icc-cpi.int/CourtRecords/CR2011_08353.PDF.   Gaddafi was supposedly amnestied on 28 July 2015 by Libya’s then internationally recognized government based in Tobruk.2Tobruk Approves New Amnesty Law as Gaddafi-officials Sentenced in Tripoli,  Libya’s Channel, 28 July 2015, available at http://en.libyaschannel.com/2015/07/28/tobruk-approves-new-amnesty-law-as-gaddafi-officials-sentenced-in-tripoli/. According to his lawyers, the ICC cannot or should not try Gaddafi because, having been tried, convicted and sentenced by the Tripoli Court of Assize, also on 28 July 2015, jeopardy attaches (a subsequent trial would constitute double jeopardy; the prohibition is against twice putting a person in jeopardy for the same crime once acquitted).3Gaddafi’s Son Saif al-Islam Sentenced to Death by Court in Libya, The Guardian, 28 July 2015, available at https://www.theguardian.com/world/2015/jul/28/saif-al-islam-sentenced-death-by-court-in-libya-gaddafi-son. (The principle of double jeopardy was cleverly featured in Gregory Hoblit’s 2007 legal thriller film, Fracture, starring Anthony Hopkins and Ryan Gosling.) It appears that the conviction and sentence were never appealed, presumably because Gaddafi was amnestied on the same day the conviction was handed down.4Libyan Parliament Approves Amnesty Law Hours after Qaddafi Son Sentenced to Death, Shanghai Daily, 29 July 2015, available at http://www.shanghaidaily.com/article/article_xinhua.aspx?id=294674. In any event, submissions for the dismissal of the ICC charges were promised.  Bold and dramatic action is to be expected.  A sequel post on the outcome is likely.

In the last two posts I discussed amnesty and ne bis in idem / double jeopardy as understood and applied by international and internationalized (a term used for domestic courts who are assisted by international donors and organizations such as the UN) criminal tribunals. Though by no means exhaustive, it should suit the purpose of this series: are the amnesty / pardon and / or ne bis in idem / double jeopardy game-changers for the case against Gaddafi before the ICC? This is the question I will discuss in this final series post.5I am most grateful to Ms. Emily Ghadimi, Legal Intern on the Prlić Defence Team at the ICTY, for her excellent assistance with this series of posts, and in particular this last post.

Must the ICC accept Libya’s amnesty (or is it pardon) of Gaddafi (and others)?

Though the terms amnesty and pardon are frequently used interchangeably and may even be considered to mean the same thing, as I pointed out in the second post, I would caution to keep them separate.  As I noted in the first post, there is a difference between being amnestied and being pardoned. Amnesty comes before being tried and sentenced.  There is a tacit understanding that crimes or atrocities were committed and that for the sake of moving on and preventing further bloodshed it is best to forgo judicial proceedings; perpetrators go uncharged, untried, and unpunished.  Pardons come after there has been a trial, a conviction and perhaps even the imposition of a sentence.  A pardon is tantamount to absolution.

Political upheaval in Libya, the Tripoli trial, and the Tobruk amnesty law

It is impossible to discuss and analyze Gaddafi’s trial, the blanket amnesty law, and the issue of ne bis in idem / double jeopardy without setting the table with a summary of the political situation in Libya. A brief overview in broad strokes of the recent political developments in Libya will give us the context to consider whether the trial was fair and in accordance with international standards, whether the conviction and sentence were final, whether the government that issued the amnesty had the authority to do so, and if so, whether it had the authority to issue an amnesty for the alleged crimes for which Gaddafi was indicted by the ICC, and whether the ICC is bound by the amnesty and/or prevented from prosecuting Gaddafi because he was tried, convicted, and sentenced and thus ne bis in idem / jeopardy has attached.

The Libyan Revolution in 2011 which toppled the Muammar Gaddafi regime prompted a conflict among many rival groups for control of the Libyan territory that continues to this day.  Between 2011 and 2012 the National Transitional Council was internationally recognized as the official transitional government of Libya, before handing power over to the General National Congress following elections in July 2012.6Libya’s Transitional Rulers Hand Over Power to Elected Assembly, The Guardian, 9 August 2012, available at https://www.theguardian.com/world/2012/aug/09/libya-power-elected-assembley. Elections were held again in June 2014, but after the General National Congress refused to cede its power and remained in Tripoli, the newly elected and then internationally recognized House of Representatives (also known as the “Tobruk government”) retreated to the eastern city of Tobruk to govern from there.7Libya’s Runaway Parliament Seeks Refuge in Tobruk Bubble, Reuters, 2 October 2014, available at http://www.reuters.com/article/us-libya-security-insight-idUSKCN0HR1GO20141002. Since then the two rival governments have fought for control with each side loosely supported by other armed groups and against a backdrop of the Islamic State (commonly referred to among other terms as “ISIS”) gaining control in certain parts of the country.

On 17 December 2015, following extensive negotiations facilitated by the UN Support Mission in Libya (“UNSMIL”),8UN Welcomes ‘Historic’ Signing of Libyan Political Agreement, UN News Centre, 17 December 2015, available at http://www.un.org/apps/news/story.asp?NewsID=52845. the Libyan Political Agreement9Libyan Political Agreement, as signed on 17 December 2015, available at: https://unsmil.unmissions.org/LinkClick.aspx?fileticket=miXuJYkQAQg%3D&tabid=3559&mid=6187&language=fr. was signed by representatives of the two rival governments in an attempt to establish one unified Libyan government, the Government of National Accord (“GNA”).  This agreement was immediately endorsed by the UN Security Council.10UN Security Council Resolution 2259, UN Doc. No. S/RES/2259 (2015), 23 December 2015, p. 4. The GNA entered Tripoli in March 2016 amidst unrest in the city.11Chief of Libya’s New UN-backed Government Arrives in Tripoli, The Guardian, 31 March 2016, available at https://www.theguardian.com/world/2016/mar/30/chief-libyas-un-backed-government-fayez-sarraj-arrives-tripoli. In early April 2016 the Tripoli authorities ceded power to the new unity government,12Libya: Tripoli Authorities Support UN-backed Government, Aljazeera, 6 April, 2016, available at http://www.aljazeera.com/news/2016/04/libya-tripoli-authorities-unity-government-160405203534731.html. although there were reports that others in power in Tripoli were not supporting the new unity government.13Libya’s Tripoli Authority Rejects UN-backed Government, Aljazeera, 7 April 2016, available at http://www.aljazeera.com/news/2016/04/libya-tripoli-authority-rejects-backed-government-160407041526033.html. Thus far the GNA has failed to secure the support of the Tobruk government, which is no longer the internationally recognized government.14Libyan Unity Government Extends Control over Tripoli Ministries, Reuters, 25 April 2016, available at http://www.reuters.com/article/us-libya-security-politics-idUSKCN0XM23B.

Within this political upheaval Saif al-Islam Gaddafi and 36 other senior Gaddafi regime officials were put on trial by the Tripoli Court of Assize for crimes committed during the February 2011 Revolution. The trial ran from March 2014 to May 2015.15Lybia: Flawed Trial of Gaddafi Officials, Human Rights Watch, 28 July 2015, available at https://www.hrw.org/news/2015/07/28/libya-flawed-trial-gaddafi-officials. Human Rights Watch reviewed the charges before the trial, noting the lack of public access to documents and court records.16Libya: Gaddafi Son, Ex-officials, Held Without Due Process, Human Rights Watch, 13 February 2014, available at https://www.hrw.org/news/2014/02/13/libya-gaddafi-son-ex-officials-held-without-due-process. According to Human Rights Watch the accused were charged with a range of offences, including providing weapons and ammunition to various armed groups, creating killing squads, and carrying out aerial attacks on civilians.  Convictions followed.   Sentences were imposed on 28 July 2015, with Gaddafi drawing death.17Gaddafi’s Son Saif Al-Islam sentenced to death by Court in Libya, The Guardian, 28 July 2015, available at https://www.theguardian.com/world/2015/jul/28/saif-al-islam-sentenced-death-by-court-in-libya-gaddafi-son. The same day the Tobruk government passed a general amnesty law for certain categories of crimes committed since 2011, seemingly in response to the verdict handed down in Tripoli.18Libyan Parliament Approves Amnesty Law Hours after Qaddafi Son Sentenced to Death, Shanghai Daily, 29 July 2015, available at http://www.shanghaidaily.com/article/article_xinhua.aspx?id=294674.

Throughout this period and thereafter, the ICC has been pursuing its case against Gaddafi and has been engaging with the Libyan authorities in an attempt to secure Gaddafi’s presence in The Hague. The catch, as I noted in the first post, is that Gaddafi is not in the custody of either of the rival Libyan governments.  He is being held by forces (militia) in Zintan who are neither loyal to nor cooperating with the two rival governments.

So, how does the general amnesty law issued by the Tobruk government apply to Gaddafi?  Setting aside the opinion of the Tobruk government towards the Tripoli trial, if Gaddafi was tried and convicted, as has been reported, then it would seem that he was pardoned as opposed to amnestied.  That assumes that the trial was a bona fide trial.  But the trial seems to have been a sham.19“Show Trial”: Gaddafi’s Son Saif Sentenced to Death in Absentia, RT, 28 July 2015, available at https://www.rt.com/op-edge/310989-gaddafi-trial-verdict-libya/. Assuming the media got it right, and I think they did, Gaddafi did not meaningfully participate in his trial.  His participation in the trial proceedings was reduced to sporadically spectating via video link.20Libya: Flawed Trial of Gaddafi Officials, Amnesty International,  28 July 2015, available at https://www.amnesty.org/en/latest/news/2015/07/libya-flawed-trial-of-al-gaddafi-officials/. For all intents and purposes, he had no access to a meaningful or zealous defence.

Did this trial in absentia, resulting in a conviction and death sentence, meet universally recognized fair trial rights protections?  In short, no. UNSMIL expressed its strong concerns that the trial and the subsequent death sentence did not meet international standards.21Concerns About Verdict in Trial of Former Qadhafi-era Officials, UNSMIL, 28 July 2015, available at https://unsmil.unmissions.org/Default.aspx?ctl=Details&tabid=3543&mid=6187&ItemID=2099165.  The myriad problems with the Tripoli trial were also highlighted by Human Rights Watch22Flawed Trial of Gaddafi Officials, Human Rights Watch, 28 July 2015, available at https://www.hrw.org/news/2015/07/28/libya-flawed-trial-gaddafi-officials. and Amnesty International.23Libya: Flawed Trial of Gaddafi Officials, Amnesty International, 28 July 2015, available at https://www.amnesty.org/en/latest/news/2015/07/libya-flawed-trial-of-al-gaddafi-officials/.

If the Tripoli trial is not recognized as a valid trial, then amnesty is a more appropriate term than pardon. In other words, since a sham trial amounts to no trial, effectively Gaddafi has not been tried and thus more fittingly he was amnestied by the Tobruk government.

Another way of looking at it is that Gaddafi fell under the general overarching amnesty: pardoned for the crimes of which he was tried and convicted (however flawed the trial was), and amnestied for all uncharged crimes the government could allege or trump up – however tenuous or provable.  This all-encompassing amnesty would serve as a total bar to any future prosecutions for any alleged crimes committed during the relevant period, and an absolution for the crimes of which he was found guilty and sentenced to death. Principally, this hair-splitting may be academically interesting, though under the circumstances it seems hardly germane.  As claimed, Gaddafi was amnestied – although UNSMIL noted its concern that even though certain categories of crimes were excluded from the amnesty, it didn’t appear that all crimes under international law were excluded.24UNSMIL, Report on the Human Rights Situation in Libya, 16 November 2015, p. 30, available at: http://www.ohchr.org/Documents/Countries/LY/UNSMIL_OHCHRJointly_report_Libya_16.11.15.pdf. In this case, if the ICC does accept the amnesty it must then examine in detail which international crimes are included in the amnesty and which are not, and thus determine what Gaddafi can actually be prosecuted for before the ICC.

Is the Tobruk amnesty law valid and legally binding? And, if so, to what extent? 

We have seen in the second post that States can issue amnesties.  But for what?  Can a State issue an amnesty, or pardon for that matter, for jus cogens crimes, such as the crimes against humanity for which Gaddafi is indicted at the ICC?  And if a State could issue such amnesties or pardons under its domestic law, are other States or international and internationalized criminal tribunals bound to recognize such decrees? In Gaddafi’s case, one would need to consider both the status of customary international law and the domestic political situation in Libya.

In my opinion, customary international law on this issue may be in the process of crystallization, but, to date, has yet harden into a definable product.  The Lomé Agreement, referred to in the second post, is an exquisite example of why amnesties remain relevant and necessary instruments today. One has to counterbalance past atrocities and the need for accountability and retribution (the bases for sentencing), against the need to prevent further loss of life, further atrocities, further crimes against humanity and war crimes or even genocide.25William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U. C. Davis J. Int’l L. & Pol’y, 145, 165-68 (2004). The UN was all too happy and willing to sign the Lomé Agreement as a moral guarantor.  The amnesty provided in the agreement was part and parcel of the peace and reconciliation process. It was a necessary evil, or as I characterize amnesties, a virtuous evil, dictated by common sense and human decency, and the desire to protect innocent souls from the inescapable tragedies that the status quo – the continuation of the conflict – would bring.  Repugnant but necessary.

The UN’s subsequent volte-face26UN Security Council Resolution 1315, UN Doc. No. s/res/1315 (2000), 14 August 2000, preamble. was purely political, not legal. Adding a postscript to the Lomé Agreement that it had signed as a co-guarantor was a shameful act of cowardice and duplicity.  Its have its cake and eat it too conduct cannot be viewed with any degree of legitimacy as acceptable legal authority that the UN categorically opposes blanket amnesties for crimes, including jus cogens crimes, or that as a matter of customary international law, amnesties for jus cogens crimes are ultra vires and thus non-binding. If anything, the UN’s participation in the negotiation and signature of the agreement betrays the deferred protestations expressed in its postscript.

When the issue came up before the ECCC, the Pre-Trial Chamber found that the amnesty that was granted by the State was for domestic crimes, rather than genocide, crimes against humanity or grave breaches of the Geneva Conventions.27Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ(PTC 75), Decision on IENG Sary’s Appeal Against the Closing Order, 11 April 2011, D427/1/30, paras. 195-200. It then went on to conclude that an interpretation of the amnesty as covering all crimes committed during the 1975-1979 period would be inconsistent with Cambodia’s international obligations. It noted that Cambodia had an obligation to prosecute and punish authors of genocide and grave breaches of the Geneva Conventions, and an obligation to ensure that victims of crimes against humanity are afforded an effective remedy. It considered that there was no indication that Cambodia’s King and others involved in granting the amnesty intended not to respect Cambodia’s international obligations, so it could not accept an interpretation of the amnesty as one intended to cover such crimes.28Id., para. 201.

The Trial Chamber later took a slightly different approach, considering that in view of the general context in which the amnesty was issued, the amnesty might have been intended to grant Ieng Sary general immunity from enforcement of any sentence or from prosecution for any acts committed before 1996 (when the amnesty was issued).29Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), 3 November 2011, E51/15, para. 29. Similar to the Pre-Trial Chamber, the Trial Chamber then determined that Cambodia’s treaty obligations impose an absolute duty to prosecute genocide, grave breaches of the Geneva Conventions, and torture. It found that the amnesty could not relieve Cambodia of this obligation or present an obstacle to such prosecution.30Id., paras. 38-39. Concerning crimes against humanity (apart from torture), the Trial Chamber considered that although State practice is “arguably insufficiently uniform to establish an absolute prohibition of amnesties in relation to them, this practice demonstrates at a minimum a retroactive right for third States, internationalised and domestic courts to evaluate amnesties and to set them aside or limit their scope should they be deemed incompatible with international norms.”31Id., paras. 40-53 (quote, para. 53).

In my view, the Pre-Trial and Trial Chambers erred when they considered Cambodia’s State obligations a bar to applying the amnesty. As I mentioned in the second post, Cambodia’s treaty obligations should be extraneous when determining the validity of amnesties or pardons in a domestic court. If a State has not fully performed its international obligations, this is a matter between that State and the international community, rather than affecting that State internally. Further, I consider that the Trial Chamber erred in considering whether customary international law would bar application of the amnesty. The ECCC is a domestic Cambodian court, applying Cambodian law, and customary international law is not directly applicable in Cambodia, a dualist State.

The result was unsurprising.  To have found otherwise would have meant cutting Ieng Sary loose, something that was never in the cards and would have never been tolerated by the donor nations financing the ECCC. In the words of David Boyle, who went on to work at the Office of Co-Investigating Judges:

The case of Ieng Sary is an example of the problems that will arise before the Cambodian court. Ieng Sary has been granted a constitutionally valid pardon and immunity for certain crimes and for prosecution under the 1994 law. To what extent is this constitutionally valid amnesty and pardon applicable before the Khmer Rouge trial? This has been left to the court to decide. All these questions will be raised by the defense, and should be dealt with beforehand in order to avoid that talented lawyers will slow trials down so much that three years will not be enough to finish. There are two possible avenues for partially resolving these issues. One would be for the judges immediately after having been nominated by the SCM [Supreme Council of Magistracy] to get together with prosecutors and investigating judges and work out exactly what is the applicable procedure for the courts. They cannot change the law, but they can work out what the law means.32Report from a conference held in Phnom Penh March 2-3, 2005 organized by FIDH, LICADHO and ADHOC, International Criminal Court Programme: Articulation between the International Criminal Court and the Khmer Rouge Tribunal: the Place of Victims, 3. B. David Boyle, The Legal Framework of the Khmer Rouge Tribunal, p. 18  (emphasis added).

And let’s not forget Stephen Heder, the co-author of Seven Candidates for Prosecution (Ieng Sary being one of the seven), who first went to work for the Office of the Co-Prosecutors in drafting the Introductory Submission (proposed charges) and then switched over to the Office of the Co-Investigating Judges to investigate the very proposed charges he advocated in his book and presumably contributed to in the Introductory Submission developed during his employment in the Office of the Co-Prosecutors.

The Ieng Sary case before the ECCC is instructive.  It shows that there is an overwhelming desire on the part of international and internationalized prosecuting and investigating judicial authorities to find creative ways to either get around or outright disregard amnesties that would otherwise interfere with bringing to book individuals accused (and in their minds guilty) of jus cogens crimes.

But let’s get back to the issue of whether the Tobruk government, as the internationally recognized government of Libya in July 2015, was entitled to issue a blanket amnesty, including to Gaddafi, for alleged jus cogens crimes.  In my opinion the answer is: yes. As a sovereign State, Libya was free to grant such an amnesty, and furthermore customary international law does not bar such amnesties – at least for the time being.  Change, however, is on the horizon.  The UN Office of the High Commissioner for Human Rights, for example, argues that under various sources of international law and UN policy, amnesties are impermissible if they prevent the prosecution of individuals for war crimes, genocide, crimes against humanity or gross violations of human rights.33Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Amnesties (UN 2009), p. 12, available at http://www.ohchr.org/documents/publications/amnesties_en.pdf.

But does this answer suffice for the purposes of our discussion?  No. The question that begs an answer is whether Libya’s amnesty is binding on the ICC?

We have seen in the second post that a domestic amnesty is not necessarily enforceable in or binding on other States. I suggest the same applies with the ICC; it may accept a State’s amnesty (especially if negotiated and co-guaranteed by the UN), but not necessarily.  Making a complementarity argument is unlikely to have any traction.34Based on the principle of complementarity, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute. Hence the term “complementarity,” which makes the ICC jurisdiction complementary to the criminal jurisdiction of national courts. Discussing the principle of complementarity in great detail, see Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal law: Origin, Development and Practice (Brill Nijhoff 2008).  For an interesting discussion on the current state of complementarity at the ICC, see Kevin Jon Heller, Radical Complementarity, 14 J. Int’l Crim. Just. 637 (2016).

But there are also very practical reasons why the ICC is not – or will not accede to being – bound to accept State amnesties.  Accepting State amnesties for crimes that fall within the jurisdiction of the ICC would effectively defeat the raison d’être of the ICC to end impunity for serious international crimes.  A State could issue binding amnesties and pardons for sitting Presidents and Prime Ministers, government officials, high-ranking military officers, and so on down the line, to prevent their prosecution before the ICC.

I am not inclined to go so far as to claim that the ICC has no discretionary authority to accept a State amnesty; there may be instances where it would be in the interests of justice, or necessary to avoid a miscarriage of justice, that accepting a State’s amnesty would be prudent.  However, here again, I venture to say that the ICC is more likely to find other creative reasons for dismissing a case or not proceeding against suspects, as opposed to endorsing the slippery slope notion that it is amenable to accepting amnesties by States for jus cogens crimes.  Why open the flood gates to a pesky issue fraught with legal and political implications that could boomerang when other tools are available, namely prosecutorial and judicial discretion?

For these reasons, team Gaddafi is likely to find little traction in convincing the ICC that it must, or even should, accept the general amnesty law.  Also, though perhaps not consequential, the amnesty was issued by a government which is no longer the internationally recognized government of Libya, and which has yet to accept the authority of the new UN-backed unity government.  And let’s not forget its non-cooperation with the ICC.35Prosecutor v. Gaddafi, ICC-01/11-01/11, Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, 10 December 2014. Even if the Tobruk government does accede to the new unity government, how likely is it that the unity government will retain and uphold the general amnesty law? I venture that it is manifestly unlikely, especially given the concerns expressed by UNSMIL outlined above.

Must the ICC drop the charges against Gaddafi based on the ne bis in idem principle / double jeopardy?

In the previous post I suggested a checklist for determining whether a case is barred from re-prosecution based on the ne bis in idem principle.  Team Gaddafi emphatically noted that jeopardy has attached because, as Karim Khan said on 7 July 2016 “[t]here was a trial, there was a conviction, he was sentenced to death. After that there was an amnesty.”36Gaddafi Son Al-Islam ‘freed after death sentence quashed’, The Guardian, 7 July 2016, available at https://www.theguardian.com/world/2016/jul/07/gaddafi-son-saif-al-islam-freed-after-death-sentence-quashed. In other words, having been tried and amnestied, trying Gaddafi again at the ICC would place him in double jeopardy.

Before getting to the checklist, let’s review what was argued before the ICC concerning Libya’s ability to provide Gaddafi a trial under international standards – the basic ICCPR fair trial rights.  For the purposes of the case before the ICC, it is necessary to determine whether ne bis in idem, set out in Article 20 of the Rome Statute, attaches to the Tripoli trial. At first glance it appears to fall under the exception to the principle set out in Article 20(3)(b) of the Rome Statute, which states:

No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:… (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

It is worth noting that the two rival Libyan governments granted a mandate to Dr. Ahmed El-Gehani as the Libya Focal Point for ICC Requests, essentially acting as a liaison between the ICC and the Libyan governments.  Thus, despite its internal divisions, Libya presented a unified front before the ICC.37Prosecutor v. Gaddafi & al-Senussi, ICC-01/11-01/11-612, Response to Prosecution’s ‘Request for an Order to Libya to Refrain from Executing Saif Al-Islam Gaddafi, Immediately Surrender Him to the Court, and Report His Death Sentence to the United Nations Security Council’, 20 August 2015, para. 13 and Annex B.

Of course it almost goes without saying that Libya maintained its ability to investigate and prosecute Gaddafi throughout the admissibility proceedings before the ICC.  In its 1 May 2012 application challenging the admissibility of the case against Gaddafi, Libya submitted that it had “expended considerable efforts to ensure an effective and genuine investigation” in order to achieve a fair trial in Libya.38Prosecutor v. Gaddafi & al-Senussi, ICC-01/11-01/11, Application on behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, 1 May 2012, para. 12. Libya also highlighted the domestic and international fair trial obligations and guarantees in arguing for Libya’s willingness and ability to pursue the case against Gaddafi under Article 17 of the Rome Statute.39Id., paras. 56-57.

The decisions of the Pre-Trial Chamber (“PTC”)40Prosecutor v. Gaddafi & al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi, 31 May 2013; Prosecutor v. Gaddafi & al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case Against Abdullah Al-Senussi, 11 October 2013. and the Appeals Chamber41Prosecutor v. Gaddafi & 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. unequivocally demonstrate Libya’s inability to provide, at least Gaddafi, a fair trial.  In discussing the situation in Libya in an earlier post, I discussed the PTC’s schizophrenic complementarity decision: Libya was willing and able to try Abdullah al-Senussi, but only willing and unable to try Gaddafi.  Judge Christine Van den Wyngaert eloquently noted in her Separate Declaration how the security situation could negatively affect Libya’s ability to carry out the proceedings against al-Senussi, drawing attention to the abduction of the Libyan Prime Minister, Ali Zeidan, on 10 October 2013.42Prosecutor v. Gaddafi & al-Senussi, ICC-01/11-01/11-466-Anx, Declaration of Judge Christine Van den Wyngaert, 11 October 2013, paras. 2-3. Reports from that time on the security situation in Libya include UN Security Council Resolution 2095,43UN Security Council Resolution 2095 (2013), UN Doc. S/RES/2095 (2013), 14 March 2013. among others, and the report of the expert panel for the Security Council.44UN Security Council, Final report of the Panel of Experts established pursuant to resolution 1973 (2011) concerning Libya, UN Doc. S/2014/106, 19 February 2014. In comments to the Security Council, the Libyan representative summed up the security situation as follows:

Today, Libya faces two threats in the security domain. The first concerns extremist groups with international associations and linkages that seek, by all possible means, to restructure the State based on their own vision. They use violence and terrorism to prevent the emergence of any legitimate force they perceive as a threat. The second threat is manifested by remnants of the prior regime, including groups that have retained their weapons in various areas of the country and are seeking to undermine stability at every opportune moment, with coordination and direct support from senior officials of the former regime who now live outside of Libya…45UN Security Council, 7130th meeting, UN Doc. S/PV.7130, 10 March 2014, p. 6.

Following the outcome of the Tripoli trial in July 2015, the ICC Prosecutor requested an order for Libya to refrain from executing Gaddafi.46Prosecutor v. Gaddafi, ICC-01/11-01/11, Prosecution Request for an Order to Libya to Refrain from Executing Saif Al-Islam Gaddafi, Immediately Surrender Him to the Court, and Report His Death Sentence to the United Nations Security Council, 30 July 2015. In its response to the Prosecutor, Libya submitted that the Tripoli trial proceeded fairly because both the Libyan prosecution authorities and judiciary remain unified, and in accordance with the separation of powers doctrine they operate independently from the two rival Libyan governments.47Prosecutor v. Gaddafi & al-Senussi, ICC-01/11-01/11-612, Response to Prosecution’s ‘Request for an Order to Libya to Refrain from Executing Saif Al-Islam Gaddafi, Immediately Surrender Him to the Court, and Report His Death Sentence to the United Nations Security Council’, 20 August 2015, para. 13. Libya argued in its response to the Prosecutor that such an order to refrain from executing Gaddafi was unnecessary. Since Gaddafi was tried in absentia, Libyan law guarantees an absolute right to a new trial once he is in the custody of the Libyan authorities.48Id., para. 6. Libya further submitted that there is an absolute prohibition on imposing the death penalty following a trial in absentia.49Id. Given the quality of the first trial and the ongoing political instability in Libya, such assurances, as well intentioned as they may be, do not exactly instill confidence that Gaddafi’s fair trial rights will be upheld in a new trial by the same court.

By looking at what has been reported on the Tripoli trial and what team Gaddafi has argued in the past before the ICC, is it reasonable to presume that the trial met international standards, or that Gaddafi, who was effectively tried in absentia, was afforded procedural as well as substantive justice?  Hardly.

The inescapable truth is that from day one, Gaddafi’s legal team made Herculean efforts to get him to The Hague, to have him detained at the United Nations Detention Unit, and if necessary to have him tried before the ICC.  Why?  Because the Libyan government, such as it was (and remains), could not provide Gaddafi a fair trial – whether he participated in person in Tripoli or through video link.  If the reports on the trial are accurate, Gaddafi’s participation was circumscribed to sporadic video link observance – more akin to that of a lackadaisical spectator than an accused on trial for his life.  Gaddafi was deprived of virtually every ICCPR fair trial right.  The trial was a charade, an absurdity, a perversion of justice.  Can, or better yet, should jeopardy attach for the purposes of executing the sentence imposed?  Does this trial suffice all the ne bis in idem criteria barring prosecution – also keeping in mind a first instance judgment is not a final judgment for ne bis in idem / double jeopardy to attach?50In common law systems, an acquittal is final and the prosecutor has no right to appeal it. To appeal the acquittal would be considered a violation of the prohibition against double jeopardyIn civil law systems, generally, an acquittal in the first instance is not a final decision and may be appealed. An appeal is viewed as a continuation of the trial. See Christopher Safferling, Towards an International Criminal Procedure 332-333 (OUP 2001) (discussing the common law and civil law approaches to the ne bis in idem principle). The appeals procedure at the ICC allows for an appeal by the OTP against acquittals under Article 81(1)(a) of the ICC Statute. The drafting of Article 81 gave rise to a debate between the delegates representing various common and civil law systems. Article 81 reflected a compromise between the civil and common law systems, focusing on the specific grounds upon which the parties may base an appeal. See Helen Brady & Mark Jennings, Appeal and Revision, in The ICC. The Making of the Rome Statute 297-299 (Roy S. Lee ed. 1991), (discussing the drafting of Article 81 with a survey of provisions of the major human rights conventions). Might it not be easier for a camel to go through the eye of a needle than to convincingly argue that Gaddafi’s trial met international standards, and thus, the trial, at least, was fair?

Perhaps going through my suggested checklist will assist us in assessing whether the ne bis in idem / double jeopardy argument is likely to get much traction at the ICC.

Checklist

Is the judgment of the Tripoli Court of Assize a final judgment?

  • Gaddafi’s conviction and sentence by the Tripoli Court of Assize are subject to appeal before the Supreme Court of Libya. Gaddafi was tried in absentia and as such has an absolute right to a retrial under Libyan law once he is in the custody of the Libyan authorities. Ne bis in idem does not attach and the current sentence against him cannot be carried out until after he is retried.

Is the case against Gaddafi occurring in the same State, in a different State, or before the ICC?

  • The new proceedings in question are occurring at the ICC. Therefore, the ne bis in idem principle set out in Article 20 of the ICC Statute could be a bar to prosecution, as long as other conditions are met.

Are the charges against Gaddafi before the ICC for the same offense, or based on the same acts / conduct as the previous charges?

  • In order to determine this, it will be necessary for the ICC to closely examine the precise nature and characterization of the charges against Gaddafi in the Tripoli trial, and compare these to the charges against him before the ICC.
  • However, the ICC may not enter into an examination of the previous charges, since it has already determined that Libya were unable to prosecute Gaddafi, and decided that the case against Gaddafi was admissible before the ICC. The ICC did not accept the validity of the Tripoli trial and thus the previous charges are likely to bear little relevance to the case before the ICC.

Was the Tripoli trial made for the purpose of shielding the person concerned from criminal responsibility?

  • Gaddafi was convicted and sentenced to death by the Tripoli Court of Assize; this trial was not an attempt to shield him from criminal responsibility.

Was the Tripoli trial conducted independently and impartially, in accordance with the norms of due process recognized by international law?

  • As discussed above, the trial was a sham and did not meet universally recognized fair trial guarantees. Therefore, Article 20(3)(b) of the ICC Statute provides that the ne bis in idem principle does not bar prosecution at the ICC.

Was the Tripoli trial in any other way inconsistent with an intent to bring the person concerned to justice?

  • Apparently the answer is no. However, there is no need to consider this final question since Article 20(3)(b) provides that the ne bis in idem principle will not bar prosecution at the ICC.

My take

I expect the ICC Prosecutor to be less than accommodating in dismissing the charges on amnesty or double jeopardy grounds (and I very much doubt the Court will be accommodating either).

Inevitably, the Prosecutor may have no choice but to dismiss the charges unless she is reasonably certain that she can deliver the goods. The evidence may not be sufficiently credible (and good luck getting witnesses to testify), and equally important, the Defence may legitimately be unable to carry out its own investigation, collect evidence and have witnesses testify.  Though the jurisprudence on this issue is not so encouraging for the Defence,51Equality of arms is considered an inherent element of a fair trial. See Prosecutor v. Tadić, IT-94-1-A, Appeal Judgement, 15 July 2001, para. 44. The defence has consistently challenged a wide array of procedural and structural elements, arguing for full equality of arms between the defence and the prosecution. Equality of arms is not interpreted to mean that the defence is entitled to “the material equality of possessing the same financial and/or personal resources.” See Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-A, Appeal Judgement, 1 June 2001, para. 69.  The ICTY Appeals Chamber described the principle of equality of arms to mean that “each party must have a reasonable opportunity to defend its interests ‘under conditions which do not place him at a substantial advantage vis-à-vis his proponent.’” See Prosecutor v. Tadić, IT-94-1-A, Appeal Judgement, 15 July 2001, para, 48, citing Dombo Beheer B.V. v. The Netherlands, ECtHR, Series A no. 274, 27 October 1993. arguments of access to justice, equality of arms and equal protection, not to mention the time served by Gaddafi while detained, may induce the ICC Prosecutor to re-think the strength of her case in conjunction with the interests of justice in ensuring that all accused before the ICC enjoy the fair trial rights accorded by the ICC Statute and the ICCPR.  She just may punt, squirrel away whatever little credibility her office has after the disastrous results in the Kenyan cases, and spare herself the indignity of cutting an accused loose in the middle of a trial or hear the two most agonizing words for a prosecutor at the end of a trial – not guilty.

Needless to say, not playing the amnesty and ne bis in idem / double jeopardy cards would be nothing short of ineffective assistance of legal representation.  One never knows if this just may be the case when the ICC finds its courage to accept a well-intended amnesty.  But also, these submissions present exquisite opportunities to develop a narrative militating in favor of dismissing the charges against Gaddafi on other grounds that are just as legitimate.  Other strategies may be at play, and team Gaddafi are neither new to the game nor exuberantly irrational.

In any event, if the current Libyan government chooses to uphold the amnesty it at least spares Gaddafi his life.  And at the risk of being presumptuous, I expect the Libyan government will do its utmost to ensure that Gaddafi does not end up at the ICC.


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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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