In the previous post<\/a> I examined the principle of ne bis in idem <\/em>\/ double jeopardy, setting out the general characteristics, underlying rationale, exceptions to the principle, and its transnational applications.<\/p>\n This series on Saif al-Islam Gaddafi and the ICC was prompted by the press conference organized by Gaddafi\u2019s lawyers calling for the ICC to dismiss the crimes against humanity (murder and persecution) charges against Gaddafi for which he has been indicted. In the last two posts I discussed amnesty<\/a> and ne bis in idem <\/em>\/ double jeopardy<\/a> 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 <\/em>ne bis in idem \/ double jeopardy game-changers for the case against Gaddafi before the ICC? <\/em>This is the question I will discuss in this final series post.((I am most grateful to Ms. Emily Ghadimi, Legal Intern on the Prli\u0107 Defence Team at the ICTY, for her excellent assistance with this series of posts, and in particular this last post.))<\/p>\n Must the ICC accept Libya\u2019s amnesty (or is it pardon) of Gaddafi (and others)<\/em><\/strong>? <\/strong><\/p>\n 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<\/a>, I would caution to keep them separate.\u00a0 As I noted in the first post<\/a>, there is a difference between being amnestied and being pardoned. Amnesty comes before being tried and sentenced.\u00a0 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.\u00a0 Pardons come after there has been a trial, a conviction and perhaps even the imposition of a sentence.\u00a0 A pardon is tantamount to absolution.<\/p>\n Political upheaval in Libya, the Tripoli trial, and the Tobruk amnesty law<\/em><\/p>\n It is impossible to discuss and analyze Gaddafi\u2019s trial, the blanket amnesty law, and the issue of ne bis in idem <\/em>\/ 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 <\/em>\/ jeopardy has attached.<\/p>\n 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.\u00a0 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.((Libya’s Transitional Rulers Hand Over Power to Elected Assembly, The Guardian<\/em>, 9 August 2012, available at <\/em>https:\/\/www.theguardian.com\/world\/2012\/aug\/09\/libya-power-elected-assembley<\/a>.)) 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 \u201cTobruk government\u201d) retreated to the eastern city of Tobruk to govern from there.((Libya’s Runaway Parliament Seeks Refuge in Tobruk Bubble, Reuters<\/em>, 2 October 2014, available at <\/em>http:\/\/www.reuters.com\/article\/us-libya-security-insight-idUSKCN0HR1GO20141002<\/a>.)) 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 \u201cISIS\u201d) gaining control in certain parts of the country.<\/p>\n On 17 December 2015, following extensive negotiations facilitated by the UN Support Mission in Libya (\u201cUNSMIL\u201d),((UN Welcomes \u2018Historic\u2019 Signing of Libyan Political Agreement, UN News Centre, <\/em>17 December 2015, available at <\/em>http:\/\/www.un.org\/apps\/news\/story.asp?NewsID=52845<\/a>.)) the Libyan Political Agreement((Libyan Political Agreement, as signed on 17 December 2015, available at<\/em>: https:\/\/unsmil.unmissions.org\/LinkClick.aspx?fileticket=miXuJYkQAQg%3D&tabid=3559&mid=6187&language=fr<\/a>.)) was signed by representatives of the two rival governments in an attempt to establish one unified Libyan government, the Government of National Accord (\u201cGNA\u201d).\u00a0 This agreement was immediately endorsed by the UN Security Council.((UN 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.((Chief of Libya’s New UN-backed Government Arrives in Tripoli, The Guardian<\/em>, 31 March 2016, available at <\/em>https:\/\/www.theguardian.com\/world\/2016\/mar\/30\/chief-libyas-un-backed-government-fayez-sarraj-arrives-tripoli<\/a>.)) In early April 2016 the Tripoli authorities ceded power to the new unity government,((Libya: Tripoli Authorities Support UN-backed Government, Aljazeera<\/em>, 6 April, 2016, available at <\/em>http:\/\/www.aljazeera.com\/news\/2016\/04\/libya-tripoli-authorities-unity-government-160405203534731.html<\/a>.)) although there were reports that others in power in Tripoli were not supporting the new unity government.((Libya’s Tripoli Authority Rejects UN-backed Government, Aljazeera,<\/em> 7 April 2016, available at <\/em>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.((Libyan Unity Government Extends Control over Tripoli Ministries, Reuters<\/em>, 25 April 2016, available at <\/em>http:\/\/www.reuters.com\/article\/us-libya-security-politics-idUSKCN0XM23B<\/a>.))<\/p>\n 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.((Lybia: Flawed Trial of Gaddafi Officials, Human Rights Watch<\/em>, 28 July 2015, available at <\/em>https:\/\/www.hrw.org\/news\/2015\/07\/28\/libya-flawed-trial-gaddafi-officials<\/a>.)) Human Rights Watch reviewed the charges before the trial, noting the lack of public access to documents and court records.((Libya: Gaddafi Son, Ex-officials, Held Without Due Process, Human Rights Watch<\/em>, 13 February 2014, available at <\/em>https:\/\/www.hrw.org\/news\/2014\/02\/13\/libya-gaddafi-son-ex-officials-held-without-due-process<\/a>.)) 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.\u00a0 Convictions followed.\u00a0\u00a0 Sentences were imposed on 28 July 2015, with Gaddafi drawing death.((Gaddafi\u2019s Son Saif Al-Islam sentenced to death by Court in Libya, The Guardian<\/em>, 28 July 2015, available at <\/em>https:\/\/www.theguardian.com\/world\/2015\/jul\/28\/saif-al-islam-sentenced-death-by-court-in-libya-gaddafi-son<\/a>.)) 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.((Libyan Parliament Approves Amnesty Law Hours after Qaddafi Son Sentenced to Death, Shanghai Daily<\/em>, 29 July 2015, available at <\/em>http:\/\/www.shanghaidaily.com\/article\/article_xinhua.aspx?id=294674<\/a>.))<\/p>\n 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\u2019s presence in The Hague. The catch, as I noted in the first post<\/a>, is that Gaddafi is not in the custody of either of the rival Libyan governments.\u00a0 He is being held by forces (militia) in Zintan who are neither loyal to nor cooperating with the two rival governments.<\/p>\n So, how does the general amnesty law issued by the Tobruk government apply to Gaddafi?\u00a0 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.\u00a0 That assumes that the trial was a bona fide<\/em> trial.\u00a0 But the trial seems to have been a sham.((\u201cShow Trial\u201d: Gaddafi\u2019s Son Saif Sentenced to Death in Absentia, RT<\/em>, 28 July 2015, available at <\/em>https:\/\/www.rt.com\/op-edge\/310989-gaddafi-trial-verdict-libya\/<\/a>.)) Assuming the media got it right, and I think they did, Gaddafi did not meaningfully participate in his trial.\u00a0 His participation in the trial proceedings was reduced to sporadically spectating via video link.((Libya: Flawed Trial of Gaddafi Officials, Amnesty International, <\/em>\u00a028 July 2015, available at <\/em>https:\/\/www.amnesty.org\/en\/latest\/news\/2015\/07\/libya-flawed-trial-of-al-gaddafi-officials\/<\/a>.)) For all intents and purposes, he had no access to a meaningful or zealous defence.<\/p>\n Did this trial in absentia<\/em>, resulting in a conviction and death sentence, meet universally recognized fair trial rights protections?\u00a0 In short, no. UNSMIL expressed its strong concerns that the trial and the subsequent death sentence did not meet international standards.((Concerns About Verdict in Trial of Former Qadhafi-era Officials, UNSMIL<\/em>, 28 July 2015, available at <\/em>https:\/\/unsmil.unmissions.org\/Default.aspx?ctl=Details&tabid=3543&mid=6187&ItemID=2099165<\/a>.))\u00a0 The myriad problems with the Tripoli trial were also highlighted by Human Rights Watch((Flawed Trial of Gaddafi Officials, Human Rights Watch, <\/em>28 July 2015, available at <\/em>https:\/\/www.hrw.org\/news\/2015\/07\/28\/libya-flawed-trial-gaddafi-officials<\/a>.)) and Amnesty International.((Libya: Flawed Trial of Gaddafi Officials, Amnesty International<\/em>, 28 July 2015, available at <\/em>https:\/\/www.amnesty.org\/en\/latest\/news\/2015\/07\/libya-flawed-trial-of-al-gaddafi-officials\/<\/a>.))<\/p>\n 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.<\/p>\n 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 \u2013 however tenuous or provable.\u00a0 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.\u00a0 As claimed, Gaddafi was amnestied \u2013 although UNSMIL noted its concern that even though certain categories of crimes were excluded from the amnesty, it didn\u2019t appear that all crimes under international law were excluded.((UNSMIL, Report on the Human Rights Situation in Libya, 16 November 2015, p. 30, available at<\/em>: http:\/\/www.ohchr.org\/Documents\/Countries\/LY\/UNSMIL_OHCHRJointly_report_Libya_16.11.15.pdf<\/a>.)) 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.<\/p>\n Is the Tobruk amnesty law valid and legally binding? And, if so, to what extent?\u00a0 <\/em><\/p>\n We have seen in the second post<\/a> that States can issue amnesties.\u00a0 But for what?\u00a0 Can a State issue an amnesty, or pardon for that matter, for jus cogens<\/em> crimes, such as the crimes against humanity for which Gaddafi is indicted at the ICC?\u00a0 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\u2019s case, one would need to consider both the status of customary international law and the domestic political situation in Libya.<\/p>\n 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.\u00a0 The Lom\u00e9 Agreement, referred to in the second post<\/a>, 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.((William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone<\/em>, 11 U. C. Davis J. Int\u2019l L. & Pol\u2019y, 145, 165-68 (2004). )) The UN was all too happy and willing to sign the Lom\u00e9 Agreement as a moral guarantor.\u00a0 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<\/em>, dictated by common sense and human decency, and the desire to protect innocent souls from the inescapable tragedies that the status quo \u2013 the continuation of the conflict \u2013 would bring.\u00a0 Repugnant but necessary.<\/p>\n The UN\u2019s subsequent volte-face<\/em>((UN 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 Lom\u00e9 Agreement that it had signed as a co-guarantor was a shameful act of cowardice and duplicity.\u00a0 Its have its cake and eat it too <\/em>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<\/em> crimes, or that as a matter of customary international law, amnesties for jus cogens<\/em> crimes are ultra vires <\/em>and thus non-binding. If anything, the UN\u2019s participation in the negotiation and signature of the agreement betrays the deferred protestations expressed in its postscript.<\/p>\n 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.((Case of NUON Chea et al.<\/em>, 002\/19-09-2007-ECCC-OCIJ(PTC 75), Decision on IENG Sary\u2019s 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\u2019s 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\u2019s King and others involved in granting the amnesty intended not to respect Cambodia\u2019s international obligations, so it could not accept an interpretation of the amnesty as one intended to cover such crimes.((Id.,<\/em> para. 201.))<\/p>\n 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).((Case of NUON Chea et al.<\/em>, 002\/19-09-2007-ECCC-TC, Decision on IENG Sary\u2019s Rule 89 Preliminary Objections (Ne Bis In Idem <\/em>and Amnesty and Pardon), 3 November 2011, E51\/15, para. 29.)) Similar to the Pre-Trial Chamber, the Trial Chamber then determined that Cambodia\u2019s 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.((Id.<\/em>, paras. 38-39.)) Concerning crimes against humanity (apart from torture), the Trial Chamber considered that although State practice is \u201carguably 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.\u201d((Id.<\/em>, paras. 40-53 (quote, para. 53). ))<\/p>\n In my view, the Pre-Trial and Trial Chambers erred when they considered Cambodia\u2019s State obligations a bar to applying the amnesty. As I mentioned in the second post<\/a>, Cambodia\u2019s 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.<\/p>\n The result was unsurprising.\u00a0 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:<\/p>\n 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,<\/em> 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]<\/em> 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.((Report from a conference held in Phnom Penh March 2-3, 2005 organized by FIDH, LICADHO and ADHOC, <\/em>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\u00a0 (emphasis added). ))<\/em><\/p>\n<\/blockquote>\n And let\u2019s not forget Stephen Heder, the co-author of Seven Candidates for Prosecution<\/em> (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.<\/p>\n The Ieng Sary case before the ECCC is instructive.\u00a0 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<\/em> crimes.<\/p>\n But let\u2019s 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 <\/em>crimes.\u00a0 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 \u2013 at least for the time being.\u00a0 Change, however, is on the horizon.\u00a0 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.((Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Amnesties (UN 2009), p. 12, available at <\/em>http:\/\/www.ohchr.org\/documents\/publications\/amnesties_en.pdf<\/a>.))<\/p>\n But does this answer suffice for the purposes of our discussion?\u00a0 No. The question that begs an answer is whether Libya\u2019s amnesty is binding on the ICC<\/em>?<\/p>\n We have seen in the second post<\/a> that a domestic amnesty is not necessarily enforceable in or binding on other States. I suggest the same applies with the ICC; it may<\/em> accept a State\u2019s amnesty (especially if negotiated and co-guaranteed by the UN), but not necessarily.\u00a0 Making a complementarity argument is unlikely to have any traction.((Based 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 \u201ccomplementarity,\u201d which makes the ICC jurisdiction complementary<\/em> to the criminal jurisdiction of national courts. Discussing the principle of complementarity in great detail, see<\/em> Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal law: Origin, Development and Practice (Brill Nijhoff 2008).\u00a0 For an interesting discussion on the current state of complementarity at the ICC, see<\/em> Kevin Jon Heller, Radical Complementarity<\/em>, 14 J. Int\u2019l Crim. Just. 637 (2016). ))<\/p>\n But there are also very practical reasons why the ICC is not \u2013 or will not accede to being \u2013 bound to accept State amnesties.\u00a0 Accepting State amnesties for crimes that fall within the jurisdiction of the ICC would effectively defeat the raison d\u2019\u00eatre of the ICC to end impunity for serious international crimes.\u00a0 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.<\/p>\n 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\u2019s amnesty would be prudent.\u00a0 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<\/em> notion that it is amenable to accepting amnesties by States for jus cogens<\/em> crimes.\u00a0 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?<\/p>\n 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.\u00a0 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.\u00a0 And let\u2019s not forget its non-cooperation with the ICC.((Prosecutor v. Gaddafi<\/em>, 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.<\/p>\n Must the ICC drop the charges against Gaddafi based on the <\/em><\/strong>ne bis in idem principle \/ double jeopardy<\/em>?<\/strong><\/p>\n In the previous post<\/a> I suggested a checklist for determining whether a case is barred from re-prosecution based on the ne bis in idem <\/em>principle.\u00a0 Team Gaddafi emphatically noted that jeopardy has attached because, as Karim Khan said on 7 July 2016 \u201c[t]here was a trial, there was a conviction, he was sentenced to death. After that there was an amnesty.\u201d((Gaddafi Son Al-Islam \u2018freed after death sentence quashed\u2019, The Guardian, <\/em>7 July 2016, available at <\/em>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.<\/p>\n Before getting to the checklist, let\u2019s review what was argued before the ICC concerning Libya\u2019s ability to provide Gaddafi a trial under international standards \u2013 the basic ICCPR fair trial rights.\u00a0 For the purposes of the case before the ICC, it is necessary to determine whether ne bis in idem<\/em>, 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:<\/p>\n 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:\u2026 (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.<\/em><\/p>\n<\/blockquote>\n 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.\u00a0 Thus, despite its internal divisions, Libya presented a unified front before the ICC.((Prosecutor v. Gaddafi & al-Senussi<\/em>, ICC-01\/11-01\/11-612, Response to Prosecution\u2019s \u2018Request 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\u2019, 20 August 2015, para. 13 and Annex B.))<\/p>\n Of course it almost goes without saying that Libya maintained its ability to investigate and prosecute Gaddafi throughout the admissibility proceedings before the ICC.\u00a0 In its 1 May 2012 application challenging the admissibility of the case against Gaddafi, Libya submitted that it had \u201cexpended considerable efforts to ensure an effective and genuine investigation\u201d in order to achieve a fair trial in Libya.((Prosecutor v. Gaddafi & al-Senussi<\/em>, 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\u2019s willingness and ability to pursue the case against Gaddafi under Article 17 of the Rome Statute.((Id.<\/em>, paras. 56-57.))<\/p>\n![\"Double_Jeopardy!_-77\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/08\/Double_Jeopardy_-77.png?resize=226%2C139&ssl=1\")
<\/a>((Situation in the Libyan Arab Jamahiriya<\/em>, ICC-01\/11, Warrant of Arrest for Saif Al-Islam Gaddafi, 27 June 2011 available at <\/em>https:\/\/www.icc-cpi.int\/CourtRecords\/CR2011_08353.PDF<\/a>.))\u00a0\u00a0 Gaddafi was supposedly amnestied on 28 July 2015 by Libya\u2019s then internationally recognized government based in Tobruk.((Tobruk Approves New Amnesty Law as Gaddafi-officials Sentenced in Tripoli,\u00a0 Libya\u2019s Channel, <\/em>28 July 2015, available at <\/em>http:\/\/en.libyaschannel.com\/2015\/07\/28\/tobruk-approves-new-amnesty-law-as-gaddafi-officials-sentenced-in-tripoli\/<\/a>.)) According to his lawyers, the ICC cannot or should not<\/em> 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).((Gaddafi’s Son Saif al-Islam Sentenced to Death by Court in Libya, The Guardian,<\/em> 28 July 2015, available at <\/em>https:\/\/www.theguardian.com\/world\/2015\/jul\/28\/saif-al-islam-sentenced-death-by-court-in-libya-gaddafi-son<\/a>.)) (The principle of double jeopardy was cleverly featured in Gregory Hoblit\u2019s 2007 legal thriller film, Fracture<\/em><\/a>, 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.((Libyan Parliament Approves Amnesty Law Hours after Qaddafi Son Sentenced to Death, Shanghai Daily<\/em>, 29 July 2015, available at <\/em>http:\/\/www.shanghaidaily.com\/article\/article_xinhua.aspx?id=294674<\/a>.)) In any event, submissions for the dismissal of the ICC charges were promised.\u00a0 Bold and dramatic action is to be expected.\u00a0 A sequel post on the outcome is likely.<\/p>\n\n
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