International Observers to Saif al-Islam Gaddafi: don’t count on ne bis in idem

What? The trial of Saif al-Islam Gaddafi was unfair? Shocking!

The United Nations Support Mission in Libya (UNSMIL) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) urge Libya to turn over Saif al-Islam Gaddafi, son of the late Muammar Gaddafi who ruled over Libya for 42 years, to the International Criminal Court (ICC) for a proper trial.(( United Nations, Support Mission in Libya and Office of the High Commissioner for Human Rights, Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), 21 February 2017, p. 55, para. 9.)) Surprise, surprise. Or not!

In June 2016, Saif al-Islam Gaddafi’s new lawyers in a much-publicized press conference announced that they would be pressing the ICC Prosecutor, Fatou Bensouda, to drop the charges against their client because he had been tried and supposedly amnestied (or pardoned, to be more accurate).  Claiming that the principle of double jeopardy applied, the ineluctable inference to be drawn was that the trial in Libya was not a sham((Art. 20(3)(a) of the Rome Statute of the ICC provides that “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: (a) [w]ere for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.” This exception prevents a state from exploiting the principle of double jeopardy by using a “sham trial” to then prevent a trial from being held before the ICC. )) – that Gaddafi having been fully afforded all his fair trial rights to the satisfaction of international standards – received a fair trial.  Submissions to the ICC were to follow.  The public record reveals no recent filings.

Clever lawyering, but as I noted here, here, and here, this double jeopardy argument was a nonstarter from the get-go.  No objective observer could possibly claim that Gaddafi’s trial, or that of his father’s Director of Military Intelligence, Abdullah Al-Senussi, was a fair trial.  Without a fair and credible trial, double jeopardy (ne bis in idem) cannot attach.  Ne bis in idem serves as a double-edged sword: protecting the likes of Gaddafi from sham trials, while removing the shield against re-prosecution in the case of whitewashing trials that lead to acquittals despite obvious evidence to the contrary.    

Since reasonable minds can reasonably disagree on the quality of Gaddafi’s trial, let’s see what is being reported by the UNSMIL and the UNOHCHR about the Libyan trial and the extent to which Gaddafi was afforded his basic rights guaranteed by the International Covenant on Civil and Political Rights and the Libyan Constitution.(( International Covenant on Civil and Political Rights (ICCPR), Art. 14; Libyan Constitution of 2011, Art. 7 (incorporating the ICCPR by reference): “The State shall safeguard human rights and fundamental freedoms, endeavor to join the regional and international declarations and covenants which protect these rights and freedoms and strive for the promulgation of new covenants which recognize the dignity of man as Allah’s representative on earth”; and Libyan Constitution of 2011, Arts. 31-33, guaranteeing the presumption of innocence and judicial independence, available in English here (unofficial translation). ))

In the Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), UNSMIL and UNOHCHR found that “the trial in Case 630/2012 did not meet international fair trial standards, as outlined below, and also breached Libyan law in some respects.”(( United Nations, Support Mission in Libya and Office of the High Commissioner for Human Rights, Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), 21 February 2017, p. 22.)) Here is the list of the rights that, according to this Report, have been breached:

– Prohibition of arbitrary detention and the right to judicial review of the detention;(( Id., pp. 22-25.))

– Prohibition of torture and other ill-treatment;(( Id., pp. 26-30.))

– The right not to be compelled to confess guilt or incriminate oneself;(( Id., pp. 31-32.))

– The right to be informed promptly and in detail of the charges;(( Id., pp. 32-33.))

– The right to a public hearing;(( Id., pp. 34-35.))

– The right to be represented by counsel;(( Id., pp. 36-38.))

– The right to adequate time and facilities for the preparation of a defense;(( Id., pp. 39-41.))

– The right to call and examine witnesses;(( Id., pp. 42-45.)) and

– The right to be tried in one’s presence.(( Id., pp. 45-47.))

Who among us would want such a trial, especially when facing the death penalty?

As for the amnesty or pardon issue, it too was a nonstarter – though one that no experienced defense lawyer (and Gaddafi’s team is highly experienced) should forgo pursuing.  A wise strategic move to assert double jeopardy in concert with pressing the legitimacy (and international applicability) of the amnesty.

Be that as it may, the amnesty issue, in my opinion, is not necessarily linked to the quality of the trial for purposes of double jeopardy. Arguably, the offering of amnesty may not be so much of a charade as opposed to a recognition by the Libyan government that the bogus (show) trial in Tripoli was marred and unfair (though politically necessary for public consumption). As I’ve noted, the jurisprudence on amnesty is rather settled: amnesties may be acceptable domestically, but are not necessarily binding in other jurisdictions (generally not, given other international legal commitments), and certainly are not binding internationally. Thus, while this amnesty claimed by Gaddafi’s lawyers may be applicable in Libya (not a given since it is unclear how legitimate the governing authority that issued this amnesty may be), it assuredly is not binding on the ICC.

Unsurprisingly, when the death penalty seemed imminent, Gaddafi sought extradition to the ICC for a proper trial.(( Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Public Redacted Version of the “Defence Request”, 18 May 2012, para. 22(iii), requesting the Pre-Trial Chamber to “draw adverse inferences concerning the implementation of Mr. Gaddafi’s rights in detention and the willingness and ability of the Libyan authorities to genuinely investigate the case in accordance with internationally recognized standards of due process.”)) His co-accused, Al-Senussi, also made the same overtures.(( Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11, Appeal on behalf of Abdullah Al-Senussi against Pre-Trial Chamber’s Decision on the admissibility of the case against Abdullah Al-Senussi and Request for Suspensive Effect, 17 October 2013.)) Even more curious – or disheartening – is that the ICC Pre-Trial Chamber I found that the Libyan government was unable to carry out the prosecution of Gaddafi and thus Gaddafi should be turned over to the ICC,(( 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.)) while maintaining that Al-Senussi should worry not – his trial in Libya would be “conducted by the competent authorities of Libya.”(( 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.)) Laughable, if not so intellectually vacuous and obviously politically driven (giving a semblance of normalcy and recognition to the Tripoli governing authorities who supposedly were the representative government of all of Libya).

It is doubtful that Gaddafi will be turned over by those who are holding him – the Abu-Bakhr al-Siddiq Battalion in Zintan falling under the leadership of the Zintan Revolutionaries’ Military Council.(( Prosecutor v. Gaddafi, ICC-01/11-01/11, Decision on the Prosecutor’s “Request for an Order Directing the Registrar to Transmit the Request for Arrest and Surrender to Mr al-‘Ajami AL-‘ATIRI, Commander of the Abu-Bakr Al Siddiq Battalion in Zintan, Libya,” 21 November 2016, para. 6.)) There is no advantage for them in giving up this potentially profit producing trump-card. According to reports, Gaddafi may prove to be a valuable asset in the future governance (stabilizing) of Libya, and may also have access to valuable assets.

Two final points.

First, when looking at the ICC’s decisions on Gaddafi and Al-Senussi, it boggles the mind how myopic and political of an institution the ICC can be.  In reaching such disparate decisions – even if the facts were arguably different (Gaddafi would participate via video link while Al-Senussi would supposedly be present in the Tripoli court) – the ICC relinquished the moral high ground.  It showed that it was not willing or able to objectively stand up for the rights of accused (in this case, Al-Senussi) who, under the guise of complementarity, was obviously being denied his very basic fair trial rights.

Second, Gaddafi has much to gain by being turned over to the ICC.  Not only does he avoid the hangman’s noose (anything is possible under the current state of affairs in Libya), but also it appears that, as the evidence goes, the ICC Office of the Prosecutor may be overreaching.

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