Archive for category Libya
Posted by carolinguentert in AU, CAR, Chad, Crimes against Humanity, Decision Review, Fair trial/Accused's rights, Gaddafi, Genocide, ICC, ICTR, ICTY, Investigations, Kenya, Libya, News about the Courts, Nigeria, Other domestic courts, Rwanda, Torture, Truth Commissions, Victims, War Crimes, Witnesses on April 15, 2014
ICTY rejects Mladic’s Rule 98bis application and find case to answer: On Tuesday, 15 April 2014, Trial Chamber I of the ICTY rejected Ratko Mladic’s 98 bis application for acquittal, a rule under the Tribunal’s Rules of Procedure and Evidence that allows the Tribunal to acquit a defendant after an oral hearing if there exists no evidence to support a conviction. Upon dismissing the application, the Chamber held that even if Mladic has a defense to all of the counts against him, there is evidence to support all of the charges against him. (ICTY).
Libyan trial of Ex-Gaddafi Officials postponed amid concerns of a fair trial: On Monday, 14 April 2014, the Libyan government opened and subsequently adjourned the trial against Muammar Gaddafi’s sons and his former officials, due to incomplete investigations; particularly the investigation of evidence against Saadi Gaddafi remains incomplete. The case will proceed on 27 April 2014, in order to allow the investigators more preparation time and to set up video links for the sons and officials who were not brought to the court for security reasons. Human Rights Watch and Amnesty International continue to express that the defendants’ right to a fair trial have been violated. The groups are concerned that not all of the defendants have had access to lawyers; that the defense teams have been restricted in their ability to assess evidence and case files; that interrogation strategies and detention conditions have been unfair; that Libya recently amended its Code of Criminal procedure to allow trials through video links, meaning the defendants, all of whom are being held in prisons and one of whom is being held in a secret location by a militia, will not physically appear at their trials; and that the Libyan justice system is generally unstable, in part because previous attacks against lawyers and judges in Libya have resulted in the suspension of courts throughout parts of Libya. The defense lawyers raised concerns about insufficient access to the case files in court. The ICC is still deliberating on the admissibility of the cases against Saif Gaddafi and Abdullah Al-Senussi, and a decision from the Appeals Chamber on whether the Libyan government is able to try them is still outstanding. (Reuters) (For more information on this topic, please click here, here, and here).
Ruto trial hears from satellite imagery expert and breaks for Easter: Lars Bromley, a UN specialist in satellite imagery, testified before the ICC in the case against Kenyan Deputy President William Ruto and Kenyan journalist Joshua Arap Sang, explaining that at least 506 buildings were deliberately burned down in the Rift Valley following the election, and that 190 more buildings were “possibly burnt.” He based his analysis on satellite images, the deliberate nature of the burnings being evident from burn patters. The defense disputed the expert’s testimony. The trial is currently on break for the Easter holiday, after which the prosecution will likely call a witness who was instrumental in the confirmation of charges against Ruto. (Institute for War & Peace Reporting) (For additional information on this topic, please click here).
Habre defense team says trial is politically motivated: The defense team of former Chadian dictator Hissene Habre claims that the reasons behind his prosecution in Senegal were political and instigated by a Chadian spy agency. Habre, who is charged with having committed war crimes, crimes against humanity, and torture while he was in charge of Chad between 1982 and 1990, will stand trial in Senegal in 2015, where he was in exile for twelve years before being arrested last July. (Legalbrief Today).
ICTR Prosecutor asks for increased efforts to prosecute all suspects of 1994 crimes in Rwanda: In a commemoration address, Hassan Jallow, the chief prosecutor of the ICTR, asked for an increased effort to find and prosecute perpetrators of the genocide against Tutsis in 1994 who have not been tried, and that countries in which suspects of these crimes are located to transfer these alleged perpetrators to Rwanda in order to stand trial. He specifically mentioned Félicien Kabuga, Protais Mpiranya, and Augustin Bizimana, all of whom are fugitives and suspected of having played significant roles in the genocide. (AllAfrica).
UN High Commissioner for HR expresses concerns for amnesties in Nepal: Following the Nepalese government’s drafting of a law that would create a Truth and Reconciliation Commission and a Commission on Disappeared Persons, the UN High Commissioner for Human Rights Navi Pillay warned that this legislation would allow these two panels to recommend amnesties for human rights abuses that occurred in Nepal. The government denies the existence of amnesty possibilities in the legislation, saying that amnesty would only occur with the victims’ consent. (Reuters).
Amnesty claims CAH and war crimes escalating in Nigeria: Amnesty International issued a report stating that violence has increased in northeastern Nigeria due to a higher number of attacks by Boko Haram and responses by Nigerian security forces, which has resulted in the death of at least 1,500 people since the beginning of the year. According the group, these events may be war crimes and crimes against humanity, and the group urged other countries, the African Union, and the UN to launch investigations into these acts. Amnesty International has documented attacks carried out by both Boko Haram and Nigerian security forces that occurred in January, February, and March 2014. (Amnesty International).
ICC brings al-Bashir complaint to UNSC: The ICC has informed the UN Security Council and the Assembly of States Parties about DRC’s noncooperation in the arrest and surrender of Omar Al Bashir. The Chamber has referred the matter to the UN Security Council and the Assembly of States Parties to the Rome Statute with hopes that a decision on what measures should be taken will surface in the near future. (ICC).
Saif al-Islam Gaddafi to stand trial in Tripoli Monday: Concerns remain over the guarantee of fair trials for Gaddafi-era officials in Libya. HRW has reported that the inmates in Libyan prisons are not receiving their basic due process rights. The ICC has the authority to command Libyan authorities to cooperate with the court but such pressure to turn Saif al-Islam Gaddafi over to the ICC has been ignored thus far. (For additional information on this topic, please click here.) (HRW/The Guardian).
ICTY anticipated 98bis decision in Mladic Case: 17 March 2014, the Defence team for Rato Mladic orally presented its motion pursuant to Rule 98bis. The Prosecution responded on 18 March 2014. The pronouncement of the Trial Chamber’s decision on the Rule 98bis motion for acquittal is scheduled for 15 April 2014. (ICTY).
Hadzic Witness unclear on past testimony: The final prosecution witness to testify against Goran Hadzic told judges last week that he could not confirm the accuracy of his earlier testimony. The witness told the Hadzic defence team that he could remember the meetings in Serbia which he had previously testified about, in which he and Hadzic allegedly received detailed instructions from the authorities in Belgrade, as well as equipment and arms. Hadzic’s defence case is scheduled to begin on June 24. (IWPR).
HRW advocates war crimes court in Kosovo: Kosovo’s parliament is expected approve the establishment of a special court located abroad to try alleged war crimes committed during and after the 1998-1999 Kosovo War. It is also expected that the Parliament will agree to extend the mandate of EULEX with hopes of brining individual accountability to past crimes. However, even if the special court is allowed to process, there are concerns that the weak state of Kosovo’s current justice system may inhibit its effectiveness. (HRW).
Amnesty Report highlights Syria crimes: Amnesty International has reported that the Syrian army has been using starvation as a weapon of war in its control of the Yarmuk Palestinian refugee camp near Damascus. Because aid cannot be delivered due to the Syrian army’s interference at least 60 percent of those in Yarmuk are suffering from malnutrition. (AFP).
Croatia-Serbia genocide case begins at ICJ: The ICJ has begun hearings in mutual claims of genocide brought by Croatia and Serbia. The original suit was brought by Croatia in 1999 blaming Yugoslavia alleged acts amounting to ethnic cleansing. Yugoslavia, now Serbia, countersued claiming that 200,000 ethnic Serbs were forced to flee in 1995 when Croatian troops launched a military operation to retake occupied territory. (For additional information on this topic, please click here) (SBS, ICJ).
Karadzic prosecution seeks to introduce new evidence: The discovery of a mass grave in Bosnia has motivated the Prosecutors at the Hague tribunal to ask the judges to allow them to reopen their case against Bosnian Serb president Radovan Karadzic. The Prosecution argues that restricting the use of this new found evidence would be against the interests of justice. (IWPR).
Rwandan Government releases genocide report; criticizes ICTR: Rwanda’s senate has released a report that attacks the competency of the ICTR. There have been a number of acquittals which have taken place that are at the center of the public outrage. However, the court has put nearly two million people on trial, convicting 65 percent of them. (AFP).
Saadi Gaddafi returned to Libya for trial: Saadi Gaddafi has been extradited from Niger to stand trial Libya. He is currently facing charges of embezzlement and making armed threats.
Mladic Prosecution Team concludes: On Monday 24 February, the Prosecution in the Mladic case has filed notice announcing that it will rest. On March 17, 98-bis will begin, in which the accused can seek an acquittal on all counts on the grounds that there is no evidence to support a conviction. (For additional information on this topic, please click here) (ICTY, IWPR).
HRW reports war crimes in South Sudan: HRW has announced that pro and antigovernment forces are responsible for serious abuses in South Sudan that may amount to war crimes. There have been episodes of widespread killing and the targeting of civilians for military strategic gain. (HRW).
UN, International leaders meet regarding Ukraine: UN officials are concerned amid the growing tensions in the Crimea region of Ukraine. The Secretary-General has that all parties involved calm down in hopes of preventing a future escalation in violence. (UN News).
Ukrainian Parliament calls for ICC involvement: Ukrainian lawmakers have voted to refer the case of the of former President Viktor Yanukovych to the ICC. The ICC says it has not received a formal request as of yet, but a government can make a declaration accepting the court’s jurisdiction for past events. (DW).
UN concerned over extended violence in Libya: The UN has called for an end to the violence in Libya. UNSMIL has been supporting the efforts of the Libyan Government and the people to ensure the success of the democratic process in the country but episodes of violence threaten the regions stability. (UN News).
UN Human Rights Panel reports widespread crimes in N. Korea: The UN mandated report released 17 February 2014 calls for urgent action to address the rights situation in N. Korea. According to the Commission there is no parallel in the contemporary world with regard to the atrocities that have occurred and continue today in N. Korea. The Commissioners state in the report that they will recommend referral of the situation in N. Korea to the ICC. (UN News).
UN Compensation Commission orders over $1bil in damages to Kuwait: The UNCC continues to order payments by the Iraqi government to the Kuwaiti government in order to compensate for the damages that occurred in the 1990 invasion of Kuwait. The claims can be brought on behalf of individuals, corporations, governments and international organizations. The funds are drawn from the UN Compensation Fund, which is financed by Iraqi oil exports. (UN News).
Uganda Leader suggests top LRA Commander may have been killed: The Ugandan defence minister has stated that the deputy of the LRA, Okot Odhiambo, may have been killed in a period of recent fighting. The ICC indicted Odhiambo in 2005 on charges of butchering and kidnapping civilians. (AFP).
HRW reports concern over domestic Gaddafi Trial: HRW has called for proper representation for Seif al-Islam as he stands trial for illegally trying to communicate with the outside world. The ICC has been critical of Libya’s efforts to try former Kadhafi officials in Libyan courts. Most officials agree that the guarantee of a fair trial may be limited. (AFP).
ICC dismisses Prosecution appeal on decision to adjourn Gbagbo confirmation hearing: On 16 December 2013, the ICC Appeals Chamber dismissed an appeal lodged by the Prosecution against a decision by the Pre-Trial Chamber on 3 June 2013 which adjourned the confirmation hearing of former Ivory Coast President Laurent Gbagbo and requested the Prosecution submit additional evidence on specific incidents relating to the charges against Gbagbo. The Appeals Chamber found that the Prosecution had failed to show that the Pre-Trial Chamber committed an error when treating 45 incidents relied on by the Prosecution as an Article 7 attack against a civilian population.
ICC rejects Prosecution appeal on amending temporal scope of Ruto, Sang charges: On 13 December 2013, the ICC Appeals Chamber dismissed the appeal of the Prosecution in the case against William Ruto and Joshua arap Sang which contested the Pre-Trial Chamber’s decision not allowing the Prosecution to amend the temporal scope of the charges against the two accused. The Appeals Chamber found that once the charges against an accused are confirmed it is no longer possible to amend or add charges. The Appeals Chamber confirmed that once the confirmation of charges is completed the only change that can be made to the charges is a recharacterisation of the facts while not exceeding the facts and circumstances of those described in the charges confirmed by the Pre-Trial Chamber.
Libya to allow US and UK authorities question ICC indicted Al-Senussi: Libya Justice Minister Salah Merghani has stated that Libya will allow authorities from the UK and US travel to Libya and question former Gaddafi Spy Chief Abdullah Al-Senussi over the 1988 bombing of a PanAm flight over Lockerbie Scotland. When asked if Al-Senussi, who is indicted for crimes against humanity before the ICC, would be questioned, Merghani is quoted as saying “Yes this is the intention … What we are working on is finalizing the arrangements for this as much as obtaining the evidence that’s available with the UK and US authorities … We all need to know the facts.”
ICTY Seselj case continues after Judge Harhoff’s disqualification: On 13 December 2013, the Trial Chamber of the ICTY decided that the trial against Vojislav Seselj would continue following the election of Judge Mandiaye Niang to the bench. Judge Niang was elected to the Trial Chamber after Judge Harhoff was disqualified on Seselj’s request. The Trial Chamber noted that Judge Niang is capable of assessing the credibility of witnesses while becoming familiar with the case.
ECCC Prosecution issues list of potential witnesses: On 17 December 2013 it was reported that Prosecutors on the ECCC case against Nuon Chea and Khieu Samphan issued a confidential listed of 96 witnesses who will give evidence about Khamer Rouge detention facilities and work sites. Witnesses are reported to include “Cambodian citizens, journalists, civil servants, military personnel, local authorities and monks” as well as seven experts and Kaing Kek leve (“Duch”) who was convicted by the ECCC and sentenced to life for crimes committed in Tuol Sleng prison.
UN Commission to be established for CAR crimes: On 16 December 2013, UN Secretary General Ban Ki-moon stated that the United Nations will establish a commission which will investigate crimes committed in the Central African Republic; which Ban Ki-moon as said “descended into chaos” this year after the Government was overthrown in March. Ban Ki-moon is quoted as saying he is “gravely concerned about the imminent danger of mass atrocities.” Bi Ki-moon said that the presence of humanitarian efforts, including African and French troops, and human rights monitors has improved the situation, but that “we must do more to meet this test of global solidarity.”
Ireland in discussions with ICC on witness relocation program: On 16 December 2013, Fatou Bensouda stated that the Government of Ireland is in negotiations with the ICC in order to establish a program which would relocate witnesses to Ireland after their testimony before the ICC. Speaking from Dublin, the Prosecutor stated that “Protection of witnesses is one of the court’s main priorities and in this regard the conclusion of witness relocation agreements with the court is a practical way through which [states] can help the court meet this challenge.”
Saif Al Islam domestic hearing adjourned: A Tripoli court held a hearing on Thursday, 12 December 2013, for Saif Al Islam, son of Libyan dictator Muammar Gaddafi. The hearing was adjourned to the end of February “due to the absence” of four other accused, all charged with threatening national security during the 2011 revolt. Saif Al Islam is also wanted by the ICC for war crimes and crimes against humanity. (Gulf News).
Bensouda calls out U.N. Security Council for “prolonging” Darfur conflict: ICC Chief Prosecutor Fatou Bensouda has accused the U.N. Security Council of inaction. Specifically, Bensouda has voiced concern over the Security Council’s failure to arrest Sudan’s President Omar al-Bashir. Since the war in Darfur began in 2003, the U.N. and other international organizations have expended more than $10.5 billion. An estimated 300,000 individuals have died and over 2.7 million displaced. Bensouda said the “council’s silence even when notified of clear failure and/or violations by U.N. member states of their obligations to comply with this council’s resolutions only serves to add insult to the plight of Darfur’s victims.” (ABC News).
ECCC prosecutor wants second trial immediately: On Wednesday, 11 December 2013, officials from the ECCC met to discuss how to proceed with the second part of the trial of Khieu Samphan and Nuon Chea. The Chambers concluded with the first part of the trial on forced evacuations at the beginning of this year. ECCC international prosecutor Nicholas Kourmjian requested the second proceedings begin “as soon as possible.” Lawyers for the two senior leaders of the Khmer Rouge has asked to delay the next part until the ECCC issues a decision on the first. (VOA Cambodia).
Gaddafi’s head of security deserves ICC trial; says daughter: The daughter of Muammar Gaddafi’s head of security says her father deserves a fair trial at the ICC. Abdullah al-Senussi, accused of crimes against humanity related to the conflict during Gaddafi’s rule, has been in a Libyan prison the past 16 months. The ICC ruled earlier this year that the Libyan government could fairly try Senussi. Senussi’s daughter, however, fears her father will face a “show trial” if not sent to The Hague. (Chicago Tribune).
Accused Kenyan journalist claims ICC cases unconstitutional: Walter Barasa, a journalist accused by the ICC of witness interference, has moved the Kenyan High Court to declare the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto unconstitutional. Barasa claims the ICC cannot legally apply laws retrospectively to the sitting Kenyan leaders. The High Court has yet to decide whether to extradite Barasa to The Hague for trial. (The Star).
HRW warns of sentence against ICT defendant Mollah: HRW objects to the death sentence given to Abdul Qader Mollah by the Bangladeshi government. Mollah was originally convicted and sentenced by the ICT on February 5, 2013. However, in response to public outcry, the government passed amendments to the ICT law, allowing the prosecution to appeal the sentence and to seek the death penalty. HRW warns against the hanging of Mollah on the basis of retroactive legislation. (HRW).
UN publishes report on violence against women in Afghanistan: The report examines the implementation results of the Law on Elimination of Violence against Women from October 2012 to September 2013 by Afghan judicial and law enforcement authorities. The report suggests an overall positive trend but the Afghan authorities have a long way to go before any long lasting achievements can be made in regard to the protection of women. (UN Missions).
Prosecution witness says Mladic exercised control over Bosnian troops: Military analyst, Reynaud Theunens, testified at the trial of Mladic and told the Hague tribunal that the defendant had “effective control” over military operations. Reynaud is the last witness to appear in the prosecution case against Mladic and the defense is expected to present its case in May 2014. (IWPR).
CAR in midst of ongoing humanitarian crisis, UN warns: The UN says that the humanitarian situation in the CAR is deteriating at an alarming rate. A rise in violence and a lack of basic health facilities is largely responsible for the rise in the death toll. The UN has called for an end to the violence and intensified its operations to provide food, water, and shelter for the time being. (UN News).
Security Council hears testimony of security concerns in Libya: The top UN official in Libya states that the continued instability in Libya highlights the need for dialogue between the Government and the armed militias. Progress has been made toward a democratic transition within the country by way of voter registration but a number of obstacles still remain. (UN News).
Chilean granted justice at international court: An 80 year old Chilean who was severely tortured after the Pinochet regime took power in 1973 was granted a huge victory from the Inter-American Court of Human Rights this week. The Court ruled the Chile government must investigate the abuses toward Leopoldo Garcia and find those responsible for compensation. Garcia was detained after a 1973 coup and tortured into divulging names of suspected Socialists. Garcia was eventually transferred to London where he has lived for 40 years. However, Garcia has struggled throughout his life to find work and provide for his family in a foreign country. He believes Chili should “assume responsibility” for what happened to him by the Pinochet regime.
Delay of Rios Montt trial angers victims: Victims of genocide and crimes against humanity during Guatemalan President General Efrain Rios Montt’s 1982-83 rule are frustrated by the decision to delay his retrial. Amnesty International reports Mayan-Ixil indigenous people feel “let down” and worry the former President will evade justice. Rios Montt’s guilty conviction by a Guatemalan criminal court was overturned shortly after by the country’s highest court. The retrial is expected January 2015.
Serbian war crimes prosecutor charges two former Serbian army officers: Serbia’s War Crimes Prosecutors have charged two Yugoslav army leaders of war crimes. Parole Gavrilovic and Rajko Kozlina are accused of ordering an attack on a civilian village during the 1998-99 Serbian War that killed at least 27 Kosovar. A Serbian investigating judge will decide whether to indict and arrest the two leaders.
Habre appeal denied by international court: On 5 November 2013, the Court of Justice of the Economic Community of West African States held the Extraordinary African Chambers was satisfactorily established to try the former Chadian President Hissene Habre for crimes against humanity and war crimes. Habre filed a motion on 23 April 2013, challenging the legitimacy of the Extraordinary African Chambers to try him for crimes committed during his rule from 1982 to 1990. The Court found the Chambers consisted of a “special ad hoc procedure of international character” capable of holding Habre’s trial. Victims of his rule have called the Court’s decision “a huge relief.”
Kenyatta deferral gets more support: Another African country is now publicly supporting the postponement of the ICC case against Kenyan President Uhuru Kenyatta. On 5 November 2013, Jean Kimani, Kenya’s High Commissioner, stated Botswana was of the position the Kenyatta trial should not only be deferred, but also held locally. Kimani clarified that Botswana’s support for Kenya’s President did not interfere with the country’s commitment to the Rome Statute and the ICC.
Gaddafi’s son speaks from prison: Seif al-Islam, the son of former Libyan dictator Muanmar Gaddafi, answered three prepared questions from a journalist on 5 November 2013. Sitting behind bars in a Zintan prison outside the Tripoli capital, Seif al-Islam told the journalist he was well and permitted visitors. Seif was captured in November 2011 by ex-rebel forces. He is also wanted by the ICC and was charged by a Tripoli court.
Nigeria seeks change at ICC: Nigerian President Goodluck Jonathon assured the international community on Tuesday, 5 November 2013, that his country would continue supporting the ICC. However, Jonathon urged the Court to defer the pending case against Kenya’s sitting head of state. Jonathon argued Kenya’s President Uhuru Kenyatta needed to remain in Africa to fulfill his executive duties during the country’s period of instability.
Court/Tribunal: International Criminal Court
Decision Title: Decision on the admissibility of the case against Abdullah Al-Senussi
Chamber: Pre-Trial Chamber I
Case Name: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi
Date: 11 October 2013
**Con’t from Part One**
Prong Two: Ability and Willingness
The Court next considered whether the Libyan government is unable or unwilling to genuinely investigate and carry out the case against Mr. Senussi at the national level. Either unwillingness or inability to carry out the case can be a sufficient ground for failure to meet the second prong. Evidence submitted by parties can be probative of a state’s unwillingness, inability, or both.
Because Libya did not make a distinction between these two possibilities in its submissions to the Court, the Court indicated that in its analysis, it would not attempt separate analysis of both possibilities. Rather, the Court looked at the overall facts and evidence presented, to determine whether an inability and/or unwillingness on the part of Libya to genuinely pursue the case against Mr. Senussi exists.
The Chamber noted that “inability” in this context refers to a situation where the unavailability or total collapse of a state’s judicial system, renders the State unable to procure the accused, necessary evidence or testimony in a given case. The Court will make this determination after analyzing the specific circumstances surrounding the national proceedings of a case that is also before the ICC. Such an analysis will be undertaken in light of the relevant national law governing the domestic proceedings, and the rights that the relevant domestic law provides a defendant throughout the criminal process. The State retains the burden to prove its ability and/or willingness to carry out the case, but any factual allegations alleged by any party pertaining to this determination must be sufficiently substantiated.
The Court found that the Libyan government was able to establish the second prong of the Admissibility test, that it is genuinely able and willing to carry out the case against Mr. Senussi at the national level.
In making its determination, the Court looked at much the same evidence that it used to determine the first prong of the Admissibility Test. The Court reasoned that evidence that substantiate the ongoing nature of an investigation can also be relevant to determining the genuineness and efficacy of those investigations. The Court thus recalled its previous findings regarding the ongoing nature of the investigation into Mr. Senussi’s case.
The Court also looked at the external situation in Libya, and the progress of the case in light of some of the ongoing problems with which the transitional government has been dealing. The Court noted the progress of the case against Mr. Senussi, as well as those of 37 other former Gaddafi officials, from the investigation stage, to the accusation stage. It also noted that despite protests and other civil unrest, the Libyan authorities have been able to maintain the security of the judicial and investigative proceedings against Mr. Senussi. It also recalled that Libya, in the conduct of its case against Mr. Senussi and in the establishment of its judicial system generally, it has been receiving significant outside aid from the U.N., as well as several national governments.
The Court found arguments made by the Defense, the Prosecution, and the OPCV as to why Libya cannot or will not carry out genuine proceedings against Mr. Senussi unpersuasive. In responding to these arguments, the Court found that in light of Libyan criminal procedural law, and the security issues in the country, the fact that Mr. Senussi’s national case has gone on 18 months is not an undue delay. Rather, it found that throughout the 18 months, Libya has continuously and progressively investigated and continued the case, and that the time taken to investigate has not been unreasonable. It also found claims regarding potential bias against Mr. Senussi in national proceedings to be unfounded.
The most serious issue raised by the parties, and the one with which the Court had the most concern, was the claim that Mr. Senussi has yet to be appointed counsel, even though the investigation has already commenced. Whether Libya could not or would not provide Mr. Senussi benefit of counsel, to which he is entitled under Libyan law, had the potential to be fatal to Libya’s admissibility claims. Libya submitted that due to the security and political situation in Libya, it had been thus far difficult for it to secure counsel for Mr. Senussi. However, the government submitted to the Court that it was well aware of Mr. Senussi’s rights in this regard, and is attempting to find counsel. A recent submission by Libya informed the Court that the Accusation Chamber was seized of the problem, and now that the case was in its hands, it had the power to appoint counsel to Mr. Senussi by court order, should counsel not otherwise be forthcoming. Libya noted that this decision would be coming imminently. It also noted that several members of Mr. Senussi’s tribe had come forward, expressing willingness to serve as counsel.
The Court, while noting that further delay and impediments to securing counsel could in the future become fatal to Libya’s admissibility claims, was satisfied that, at the current juncture, Libya is not functionally unable or unwilling to secure defense counsel for the national case. It contrasted Mr. Senussi’s case with that of Saif Gaddafi – in which the Court found ICC admissibility despite national proceedings – based upon the fact that Mr. Senussi is actually within the control and custody of Libyan authorities, and thus can be subject to Libyan orders, including any order securing counsel. Gaddafi, on the other hand, was not within the custody and control of the authorities, subject to court order. Thus unwillingness by counsel in the country to voluntarily represent Mr. Gaddafi, presented a functional inability for the state to proceed with the case, as under Libyan law, the case cannot proceed beyond the Accusation Chamber without defense counsel. This is not the situation it finds itself in with Mr. Senussi.
As such, the Court found that the Libyan government was able to meet both prongs of the Admissibility test. Therefore, the Court ruled that the case before the ICC is inadmissible, with the caveat that the Prosecution is entitled to re-submit the issue to the Court on a showing that circumstances in the national case have significantly changed in such as way as would bear upon the continuing viability of the Court’s findings and ruling on admissibility.
Judge van der Wyngaert issued a separate declaration opining that the Court should have delayed ruling on the issue so that it could hear more submissions regarding the security situation in Libya.
To access the full Decision, click here.