ICC Pre-Trial Chamber I rejects Saif Al-Islam Gaddafi’s admissibility challenge

On April 5, Pre-Trial Chamber I, composed by Presiding Judge Péter Kovács, Judge Reine Adélaïde Sophie Alapini-Gansou and Judge Marc Perrin de Brichambaut, issued its Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute’. The majority of judges decided that Mr. Gaddafi had locus standi (the legitimate right)to lodge the Admissibility Challenge. However, the Majority rejected the Admissibility Challenge and decided that the case was admissible.

On 8 May 2019, Judge Marc Perrin de Brichambaut filed a minority opinion, which concurs with the majority in all three of the operative paragraphs of its decision.

Background of the case

The situation in Libya was referred to the ICC Prosecutor on 26 February 2011 by the United Nations Security Council, with Resolution 1970 (2011). On 3 March 2011, the Office of the Prosecutor (OTP) decided to open an investigation into this situation.

In this context, a warrant of arrest was issued on 27 June 2011 against Mr. Saif Al-Islam Gaddafi. Mr. Gaddafi is suspected of being criminally responsible as indirect co-perpetrator for two counts of crimes against humanity committed in Libya from 15 until at least 28 February 2011, through the Libyan State apparatus and Security Forces: murder, within the meaning of article 7(1)(a) of the Rome Statute, and persecution, within the meaning of article 7(1)(h) of the Rome Statute.

The Government of Libya challenged the admissibility of the case against Mr. Gaddafi on 1 May 2012. The challenge of admissibility was rejected by Pre-Trial Chamber I on 31 May 2013. The Appeals Chamber upheld this decision on 21 May 2014.

Mr. Gaddafi’s Admissibility Challenge

On 6 June 2018, the Pre-Trail Chamber I received the Admissibility Challenge by Mr. Gaddafi. The defence asserted that Mr. Saif Al-Islam Gaddafi was already tried for the same conduct by a domestic court; signaling that he has been tried together with other members of the former regime and convicted by the Tripoli Criminal Court on 28 July 2015 for substantially the same conduct as alleged in the proceedings before the ICC. In addition, the defence indicated that, in April 2016, Mr. Gaddafi was released from prison pursuant to Law No. 6 of 2015.

Pre-Trial Chamber’s Decision

In its decision, Pre-Trial Chamber (PTC) I addressed the OTP’s argument that Mr. Gaddafi lacked procedural standing to lodge the Admissibility Challenge, given that he has not been arrested nor has he surrendered himself to the ICC. In this regard, the PTC concluded that article 19(2)(a) of the Rome Statute does not require surrender, which is mainly an issue of cooperation. Therefore, any person for whom a warrant of arrest has been issued, may challenge the admissibility of the case.

Second, the PTC turned to the analysis of the grounds of Mr. Gaddafi’s Admissibility Challenge, namely the ne bis in idem principle and the consequences of Law No. 6 of 2015.

On one hand, the Chamber reaffirmed that article 17(1)(c) together with article 20(3) of the Rome Statute provide that a second trial for the ‘same conduct’ is not permitted unless ‘the proceedings in the other court were tainted with irregularities’. For this purpose, the decision on a conviction or acquittal should be final, meaning that the judgement has acquired the res judicata effect. The PTC reached this conclusion based on the ICC previous case law as well as the interpretation of the ne bis in idem provisions of the Statutes of the ad hoc tribunals, and internationally human rights standards set out in the International Covenant on Civil and Political Rights, in Protocol 7 of the European Convention on Human Rights, and in the American Convention on Human Rights.

In analyzing whether the judgement of the Tripoli Criminal Court was final, the Chamber took into consideration that it was decided in first instance and, in principle, should still be subject to appeal before the Libyan Court of Cassation. Additionally, the judgement was rendered in absentia. According to Libyan national law, in cases of absentia, a new trial should start once the person is arrested. For these reasons, the Pre-Trial Chamber concluded that the judgement was not a final decision on the merits. Therefore, it was not sufficient for satisfying articles 17(1)(c) and 20(3) of the Rome Statute.

On the other hand, the defence had argued that Law No. 6 of 2015, by granting amnesties and/or pardons, annulled the possibility of a re-trail, and rendered the existing judgement final. The Pre-Trial Chamber considered that Law No. 6 of 2015 and its provisions on amnesty and pardons were not applicable to the domestic charges for which Mr. Gaddafi was tried. Pursuant to article 3 of Law No. 6 of 2015, crimes involving murder and corruption were excluded from the application of this law.

The PTC further stated that, even assuming that Law No. 6 would put an end to the domestic judicial process (through the entry into effect of an amnesty or pardon), this does not apply to Mr Gaddafi due to the nature of the crimes set out in the 27 June 2011 ICC arrest warrant (on charges of murder and persecution as crimes against humanity). Precisely, the Chamber affirmed that “there is a strong, growing, universal tendency that grave and systematic human rights violations – which may amount to crimes against humanity by their very nature – are not subject to amnesties or pardons under international law” (paragraph 61). For this purpose, the Chamber reviewed the case law on the matter by the Inter-American Court of Human Rights, the European Court of Human Rights, the African Commission on Human and People’s Rights, and the UN Human Rights Committee. It also considered the jurisprudence of the ad hoc tribunals, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia.

The Trial Chamber concluded that the applicability of the Law No. 6 of 2015 to Mr. Gaddafi was incompatible with international law and declared that:

“[G]ranting amnesties and pardons for serious acts such as murder constituting crimes against humanity is incompatible with internationally recognized human rights. Amnesties and pardons intervene with States’ positive obligations to investigate, prosecute and punish perpetrators of core crimes. In addition, they deny victims the right to truth, access to justice, and to request reparations where appropriate” (paragraph 77).

Based on these reasons, the majority of the Chamber rejected the Admissibility Challenge and decided that the case against Mr. Saif Al-Islam Gaddafi is admissible.

Reactions from civil society organizations

Lawyers for Justice in Libya (LFJL) welcomed Pre-Trial Chamber I decision and called on the Libyan state to actively facilitate the surrender of Mr. Gaddafi to the ICC. Elham Saudi, Director of LFJL said that “as the situation in Libya again deteriorates and becomes increasingly uncertain, the confirmation of the admissibility of Mr. Gaddafi’s case highlights the importance of the ICC as the sole avenue to access justice in Libya. The decision comes at a poignant time, foregrounding the need for recommitment to the rule of law and the need for Libya to establish effective and sustainable accountability mechanisms to end impunity for grave crimes.”

Similarly, Julie Bardeche, Legal Officer of REDRESS, stated that “This decision constitutes a major step in ensuring the rights of victims of international crimes committed in Libya and sets an important precedent in the international fight against impunity worldwide”.

It should be noted that during the proceedings of the Admissibility Challenge, the PTC received the ‘Observations by Lawyers for Justice in Libya and the Redress Trust pursuant to Rule 103 of the Rules of Procedure and Evidence’, on 28 September 2018.