Court/Tribunal: International Criminal Court 

Decision Title: Decision on the admissibility of the case against Saif al-Islam Gaddafi

Chamber: Pre-Trial Chamber 1

Case Name: Prosecutor v. Saif al-Islam Gaddafi and Abdullah al-Senussi

Date: 31 May 2013

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Decision Background: The case arises from a dispute between the International Criminal Court and the country of Libya regarding the admissibility of the ICC case against Gaddafi. On 26 February 2011, the United Nations Security Council referred the situation in then-revolution Libya to the Prosecutor’s Office. On 27 June 27, the Court issued an arrest warrant for Saif al-Islam Gaddafi, son of former Libyan leader Moammar Gaddafi, for his alleged role in promulgating human rights abuses against anti-government protestors during the February 2011 uprising that ultimately toppled the Gaddafi regime.

At the same time, the new government of Libya sought to try Gaddafi domestically, under Libyan national law, for actions taken against protestors during roughly the same time period as that covered by the ICC’s mandate. Conflict arose between the two jurisdictions primarily due to the obligation under an ICC arrest warrant for a country to render an ICC defendant to the custody of the court. Saif al-Islam Gaddafi is currently in Libya, which has been reluctant to hand over custody due to its desire to try him nationally.

Pursuant to this conflict, on 1 May 2012, Libya filed a challenge to the case against the defendant at the ICC, and requested that the Court postpone Libya’s extradition obligations. On 21 January 2012, the defense to Mr. Gaddafi filed an urgent request with the Court, informing the Chamber that national trial proceedings against Gaddafi had begun in Libya on 17 January 2013. The defense requested an immediate decision by the Court regarding admissibility, and that the Court request that Libya immediately surrender the defendant to the Court. The defense renewed its request on 26 April, and also asked the Court to immediately revoke the temporary postponement granted to Libya regarding Gaddafi’s surrender. In May, Libya filed a response to the defense.

The offices of the defense, Prosecutor, and OPCV all submitted filings supporting the admissibility of Gaddafi’s case at the ICC. Libya, however, contends that as a national court system that is actively investigation and trying the same activity as that covered by the ICC case, under roughly comparable similar charges and modes of liability, under the principle of complementarity, its proceedings should be privileged against those at an international court. The parties filing in favor of admissibility argued several different (and sometimes overlapping) reasons in support of admissibility, mostly questioning whether or not an investigation into the February 2011 actions was earnestly being conducted by Libya, and whether or not Libya, as a practical matter, has the capacity and willingness to conduct the proceedings against Gaddafi. A threshold question of whether the conduct charged by Libya was essentially equivalent to the charges brought up to the ICC was also raised. Finally, the defense raised numerous concerns regarding his client’s ability to receive an impartial, fair trial at the national level, given the still-charged political situation in Libya post-Revolution.

Libya maintained that the conduct charged at the national level is essentially that covered by the ICC charges, maintained that it has been conducting an ongoing investigation of Gaddafi’s case, has the ability to conduct the case against Gaddafi, and can assure a fair trial for the defendant at the national level.

Decision Review: The Chamber first re-iterated Court precedent that the state (in this case Libya) challenging the admissibility of a case in front of the ICC bears the burden of proof to show that the case is inadmissible, while also validating Libya’s claim that generally, complementarity favors national proceedings. In order to hold a case inadmissible, the Court must find that a state is able and willing to forward a national prosecution, which relates to the question of the genuineness of the state’s domestic investigations and prosecutions. When there is a question about that genuineness, the Court will evaluate petitioning state’s ability and willingness to prosecute the case nationally.

The Court found that Libya was indeed taking genuine steps to prosecute and investigate Gaddafi’s case. Under Court jurisprudence, evidence adduced under an admissibility challenge must demonstrate that the country in question is taking progressive and concrete steps to investigate, gather evidence in, and further a domestic case. Importantly, however, in response to challenges made by the defense, the Court noted that the substantive quality or merits of that evidence (in terms of proving a defendants guilt or innocence) does not have to be proven. The question is whether or not the state in question can show that it is taking steps to gather evidence at put together a case. Evidence of genuine pursuit of a case can include, but will not be limited to, a showing that the state in question has interviewed witnesses or suspects, has collected documentary evidence, or has carried out forensic analysis.

The Court found issue with a number of the evidence submitted by Libya in support of its claim. Specifically, the Court found that many of the submissions were vague or inconclusive insofar as they addressed or demonstrated whether or not Libya is carrying out a genuine investigation of Gaddafi’s case. The Court found that many submitted documents did not contain information relevant to making that determination. In particular, many documents submitted by Libya did not include specific information regarding the specific criminal conduct that the state is investigating. The Court found other summaries prepared by domestic authorities, however, more complete in their presenting the alleged conduct subject to the national investigation. Taken as a whole, given that the emphasis at the admissibility stage is not on the strength of the evidence gathered, but whether evidence exists that evidence related to the case is being genuinely pursued by the national authorities, the Court found that Libya is genuinely investigating Gaddafi’s case.

The Court also addressed the issue of whether the case against the defendant pursued by the state in question is the same case pursued at the ICC. To meet this test, the national investigation must cover the same person and “conduct” by that person. Essentially, for a case to be inadmissible at the ICC, the conduct covered in the national case must be substantively the same as that covered in the ICC indictment. As this is a fact-specific question, the Court decides this question on a case-by-case basis. However, the Court noted that given the specifics of the Gaddafi case, it is not necessary that the charges, modes of liability and indicted conduct be exactly the same between the national and ICC case. Instead, the Court looks at whether the domestic case is investigating and charging the same underlying acts that comprise the basis for the case at the ICC level. The legal characterization of the underlying acts does not have to be the same to meet the “same case” test.

Following its reasoning, the Court held that the fact that the domestic case would prosecute “ordinary” criminal charges, versus criminal charges of an “international” level, in and of itself render the case admissible before the court, as the specific charges enumerated go to the legal characterization, and not the underlying acts. In looking at the specifics of the Gaddafi case, the Court noted that the temporal time period of conduct being investigated by Libya basically parallels that time period analyzed by the ICC – namely, 15 through at least 28 February 2011, an important consideration when determining if the conduct being investigated relates to the same case. The Court noted too the even though some of the conduct investigated by Libya extends beyond the time frame used by the ICC, this is not necessarily fatal to its admissibility challenge.

Taken overall, the Court was not convinced that the evidence presented by Libya adequately demonstrated that they are investigating the same case. While a number of the evidence presented by Libya suggests investigated conduct sufficiently similar to that being investigated by the ICC, the Court found that the evidence did not sufficiently demonstrate the “nuances” of the national case such that the Court could determine whether or not the two cases are essentially the same case. Libya’s failure, essentially, was evidentiary: the evidence given to the Court was not sufficiently probative or specific for rendering a determination. The evidence basically failed its sufficiency requirement.

While the Court noted that the evidentiary sufficiency issues could theoretically be remedied through additional submission by Libya, ultimately the Court found that serious – and largely insurmountable—issues remained with the nation’s ability to prosecute the case, which additional information would not remedy. The Court found that while Libya, contrary to arguments made by the defense (particularly regarding its perception that Libya is not committed to ensuring a fair trial for Gaddafi), has adequately demonstrated a commitment to prosecute fairly (evidenced by its use of outside international aid in setting up its judicial system, the country’s accession to several international right treaties, and its progressing investigation), practical obstacles exist that will render an expeditious and function trial of Gaddafi essentially impossible. Due to internal conditions still extant in Libya, the Court determined that essentially the judicial system there is in practice “unavailable” to prosecute the defendant. Because it found practically inability as dispositive in the case, the Court did not address the question of “willingness” beyond countering some defense arguments.

With respect to practical ability to prosecute, the Court found several areas of serious deficiency. First, the designated national authorities in Libya have been unable to physically obtain Gaddafi into their custody. The Court found that the situation in Libya post-Revolution is still not unified, such that the official authorities do not have control over all areas and factions within the Country. Gaddafi is currently in custody of a group and in an area that is not fully under Libyan control; as such, the Court found that, despite repeated efforts, Libya has not been able to secure Gaddafi. The Court found that nothing in the evidence suggests that this situation will change any time soon; additionally, the Court expressed reservations that, even if the Libyan government could secure Gaddafi’s transfer, they do not have the requisite control to ensure that he would not be aided in escape (or, alternatively, tortured and/or killed) during the transfer process. Because Libyan law prohibits in absentia trials for individuals still physically within the country, this inability to secure Gaddafi’s custody is a fundamental barrier to prosecuting the case.

Additionally, the Court found that the Libyan judicial system would be unable to adequately secure necessary testimony. Given the still-volatile and factional situation in Libya, and the fact the Libya does not really have a system fully in place for witness protection during trial, the Court found that the government’s ability to obtain testimony and evidence would be seriously hampered. Of particular concern to the Court in this regard, was its finding that Libya still does not retain full institutional control over its detention facilities. Furthermore, due to the political situation currently in Libya, the government has had an extremely difficult time finding domestic defense counsel willing to fairly represent Gaddafi, whether due to the attorneys’ own personal feelings, or fear of serious backlash from political factions for aiding a member of the former regime. As of yet, despite months of searching, defense counsel has not been appointed, and Libya has had to begin seeking potential counsel from neighboring countries. The Court found, however, that the evidence failed to show that this issue would or could be remedied in the foreseeable future. The Court viewed this problem in securing counsel as a fundamental obstacle to Libya’s ability to continue its case against the defendant.

As such, the Court found that the Libyan government, although not for want of trying, is practically unable to proceed with its case against Gaddafi at the domestic level. As such, the Court found that the case is admissible at the ICC. In reaching this finding, the Court reminded Libya of its now-continuing duty to surrender Gaddafi to the custody of the ICC as soon as possible.

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