Tagged: Saif Al-Islam Gaddafi

ICC Calls for Surrender of Two Suspects

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On December 10 and 11, 2014, Pre-Trial Chamber I of the International Criminal Court (ICC) issued decisions calling for delivery to the ICC of two persons under its arrest warrants.

The December 10 finding of non-compliance by Libya, under article 87(7), relates to Saif al-Islam Gaddafi, for whom the ICC issued an arrest warrant in May 2011, charging him with crimes against humanity allegedly committed by Libyan security forces under his command during anti-government protests. The December 11 decision on the admissibility relates to Simone Gbagbo, for whom the ICC issued an arrest warrant in February 2012, charging her with responsibility for crimes against humanity regarding violence committed by government forces against political opponents of her husband, former President Laurent Gbagbo, relating to the November 2010 Ivory Coast presidential election.

Ivory Coast was asserting its right under Rome Statute articles 17 and 19 to challenge the admissibility of Simone Gbagbo’s case on the ground that it was prosecuting her for the same crimes charged in the ICC arrest warrant. In the Gaddafi case, ICC courts had previously rejected Libya’s challenge to the admissibility of the ICC case against him and reminded Libya of its obligation to surrender him to the Court. Libya is not a State Party to the Rome Statute, but in February 2011 the U.N. Security Council acting under its Chapter VII powers issued a Resolution 1970 referring the Libyan situation to the Court and requiring Libyan authorities to fully cooperate with the ICC. The issue before the Court was whether Libya failed to comply with this obligation.

In the Ivory Coast situation, as blogged about earlier, the ICC issued arrest warrants against Ivory Coast nationals Laurent Gbagbo, Simone Gbagbo, and Charles Blé Goudé – all on the same charges relating to the same events. The Ivory Coast government chose to surrender Laurent Gbagbo and Charles Blé Goudé to the ICC, but not Simone Gbagbo. The government’s reasons for this selection are not fully apparent from court documents. Nevertheless, the Ivory Coast decided to challenge the admissibility of Simone Gbagbo’s case. The Court rejected this challenge, finding that the Ivory Coast government failed to show that it was investigating and prosecuting Gbagbo for the same criminal conduct alleged by the ICC Prosecutor. The Court concluded that Ivory Coast must “surrender Simone Gbagbo to the Court without delay.”

With respect to the Gaddafi case, the Court found that Libya failed to comply with repeated requests to deliver Gaddafi to the Court and also failed to comply with requests to return to the Defense privileged documents that Libyan authorities had seized from Gaddafi’s defense counsel. Determining that Libya was depriving the defendant of his rights and preventing the Court from fulfilling its mandate, the Court, under article 87(7), referred the matter to the Security Council, so that the Council may consider measures to secure Libya’s compliance.

ICC had previously utilized article 87(7) to inform the Security Council of the failure of authorities in Chad, Malawi, and the Democratic Republic of the Congo to arrest and surrender Sudanese President Omar al-Bashir, for whom ICC issued arrest warrants charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the conflict in Darfur. Al-Bashir remains at large.

In the week preceding the Gaddafi finding, the Trial Chamber V(B) rendered Decision on Prosecution’s application for a finding of non-compliance under article 87(7) stating that the Government of Kenya, a State Party to the Rome Statute, had breached its treaty obligation by failing to provide the Prosecutor with access to information necessary for the case against Kenyan President Kenyatta on charges of crimes against humanity committed during the 2007-2008 post-election violence in Kenya. As a result of Kenya’s breach, ICC Prosecutor Bensouda withdrew the charges against Kenyatta without prejudice. In a December 5, 2014 press release, Bensouda stated that this was “a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”

The Kenyatta, al-Bashir, Gaddafi, and Simone Gbagbo cases illustrate the difficulties the ICC confronts in carrying out its responsibilities to prosecute grave international crimes.

The ICC Reports on Situation in Libya

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On November 12, 2014, ICC Prosecutor Fatou Bensouda presented the U.N. Security Council with a report on “the deteriorating situation” in Libya, calling the Council’s attention to several disturbing matters that the OTP is confronting in its work in Libya.

The Security Council referred the situation in Libya to the ICC in 2011, pursuant to the authority accorded to it by Article 13(b) of the Rome Statute and by Chapter VII of the U.N. Charter. This was the second time the Council referred a situation of violent internal conflict to the ICC; the first time was in 2005, with respect to the violence in Darfur, Sudan. The ICC Prosecutor has been pursuing cases against several suspects in both of these situations.

In both, the ICC has encountered severe difficulties in carrying out its responsibilities. With respect to the Darfur situation, four of the suspects subject to ICC arrest warrants remain at large. As noted here, earlier this year the Prosecutor asked the Council for further assistance in dealing with the failure of several countries to execute the ICC arrest warrant for Sudan President Omar al-Bashir. As noted here, in April 2014 the ICC Pre-Trial Chamber issued a rebuke to the Democratic Republic of the Congo for failing to arrest al-Bashir when the Chamber, having advance notice of al-Bashir’s visit to the DRC, issued a request to the DRC for his arrest. The DRC is a State Party to the Rome Statute; Article 86 of the Statute requires that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

With respect to the Libya situation, Prosecutor Bensouda advised that despite elections in Libya in June 2014, political instability is increasing as two governments vie for legitimacy. She also noted that there have been several assassinations and numerous threats made against human rights workers, judges, prosecutors, and others. She reported that the deteriorating security situation in the country is making it very difficult for her Office to pursue its work, including, among other matters, the Office’s ability to investigate “new instances of mass crimes allegedly committed by the rebel forces.”

The Prosecutor expressed her Office’s “great concern” regarding “the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.” On June 27, 2011, the ICC issued an arrest warrant for Saif Al-Islam Gaddafi on two counts of crimes against humanity but he remains at large. Regarding Abdullah Al-Senussi, whom the ICC previously sought for prosecution, the Prosecutor stated that because of the on-going violence in Libya that may endanger the possibility of a fair trial for Al-Senussi, she may apply for review of decisions by ICC courts deferring to Libya’s prosecution of him.

Prosecutor Bensouda called upon Libya for cooperation, and she stated that “the international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.”

The Prosecutor’s October 23 and November 12 statements to the Security Council suggest that ICC prosecutions of cases following a Security Council referral are encountering difficulties that go beyond those encountered by prosecutors authorized to prosecute cases in the ad hoc tribunals established through Security Council resolutions prior to the Rome Statute’s entry into force in 2002. If the ICC is to be able to carry out its responsibilities – especially with regard to Security Council referrals – the Prosecutor seems to be correct that additional support for the ICC will be needed from the Security Council, from States affected, and from the international community in general.

The International Criminal Court Issues a Ruling in the Situation in Libya

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On May 21, 2014, the ICC Appeals Chamber, in a divided vote, rejected Libya’s appeal of an ICC Pre-Trial Chamber’s May 31, 2013, ruling that Libya’s criminal investigation of Saif Al-Islam Gaddafi was not sufficient to bar the ICC from conducting its own criminal proceedings against him. On February 26, 2011, the U.N. Security Council, pursuant to Chapter VII of the U.N. Charter and Article 13(b) of the Rome Statute, adopted Resolution 1970 referring the situation in Libya to the ICC for investigation of the violence occurring since 15 February 2011 between the Libyan government, then headed by Muammar Gaddafi, and anti-government protesters. In UN S.C. Res. 1970, the Security Council

[d]eplor[ed] the [Libyan government’s] gross and systematic violation of human rights, including the repression of peaceful demonstrators, [expressed] deep concern at the deaths of civilians, [and] reject[ed] unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government.

Following an investigation by the Prosecutor’s Office, on June 27, 2011, an ICC Pre-Trial Chamber issued arrest warrants for Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and Gaddafi’s brother-in-law Abdullah Al-Senussi, on charges of crimes against humanity for murder and persecution. On November 22, 2011, the ICC terminated its case against Muammar Gaddafi following his death.

On May 13, 2014 (a week before the Appeals Chamber announced its ruling), the ICC Prosecutor reported to the Security Council on the situation in Libya and asserted that

Libya continues to be under a pending obligation to surrender [Saif Al-Islam Gaddafi] to the Court [and that] [t]he Government of Libya should immediately surrender Saif Al- Islam Gaddafi to the Court or give reasons for its inability to do so.

An issue on appeal was the proper interpretation of Article 17(1)(a) of the Rome Statute, which requires the ICC to find that a case is not admissible to the ICC when “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it.” Article 19(2)(b) provides that such a State may raise an admissibility challenge in order to retain exclusive jurisdiction of the case. It was undisputed in the appeal that Libya was proceeding with an investigation of Saif Al-Islam Gaddafi that included some incidents referred to in the ICC’s arrest warrant for him. A significant issue on appeal was: How much similarity and overlap between the matters investigated by a domestic jurisdiction and an ICC investigation was required in deciding whether the scope and contours of a domestic investigation would render a ‘case’ inadmissible to the ICC under Article 17?

Libya argued that when interpreting Article 17, the principle of complementarity creates a strong presumption favoring domestic prosecution. By a 4-1 decision, the Appeals Chamber rejected Libya’s argument and held that the evidence provided by Libya regarding its investigation was insufficient to demonstrate that the actions for which Libya was investigating Saif Al-Islam Gaddafi included all matters for which the ICC sought to prosecute him.

In her dissenting opinion, Judge Ušacka explained that the majority’s interpretation of Article 17 did not give sufficient consideration to the importance of the complementarity principle. After reviewing the ICC’s previous admissibility decisions, she asserted in paragraph 39 of her dissent that Libya’s appeal

is the first admissibility case before the Court in which a State has submitted a wealth of information about its ongoing proceedings and has clearly expressed the will to investigate and prosecute the same suspects as well as conduct that is arguably even broader than that contained in the warrants of arrests.

Judge Ušacka added in paragraph 65 “as a concluding remark on the subject of complementarity,” that “the overall goal of the [Rome] Statute to combat impunity can … be achieved by the Court through means of active cooperation with the domestic authorities.” Judge Ušacka would have remanded the case to the Pre-Trial Chamber for consideration of the admissibility issue under a standard that she thought gave more adequate consideration to the Article 17 principle.