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The ICC must consider fair trial concerns in determining Libya’s application to prosecute Saif al-Islam Gaddafi nationally

Published on June 8, 2012        Author: 

Jonathan O’Donohue is a Legal Adviser for Amnesty International’s International Secretariat. He leads the Coalition for the International Criminal Court’s Budget and Finance Team.

Sophie Rigney is a PhD candidate at the University of Melbourne, examining the role of the rights of the accused in international criminal law. Between 2009-2011, she  worked at the International Criminal Tribunal for the Former Yugoslavia, including as Legal Assistant to the Stand-by Counsel in the case of Radovan Karadžić.

The ICC’s Pre-Trial Chamber is considering the Libyan government’s challenge to the admissibility of the case against Saif al-Islam Gaddafi. The request raises serious concerns as to whether he would receive a fair trial in Libya. The plain meaning of the rule of complementarity spelled out in Article 17 of the Rome Statute; the interpretative provisions in Article 21 (3); and a teleological approach confirm that, if the judges are not satisfied that the rights of the accused will be respected in national criminal proceedings, the case will be admissible and the application must be rejected.

Saif al-Islam Gaddafi was arrested in November 2011 and is being held in Zintan by militia who are refusing to hand him over to the central authorities. According to the Office of Public Counsel for Defence representing him at the ICC, he has been held in isolation in secret locations without access to national courts or effective access to a lawyer or facilities to communicate with his family.

More generally, the Libyan national justice system remains in a weak state. Thousands of suspected al-Gaddafi loyalists are currently being detained in Libya by armed militias outside the framework of the law. Only a small number have been presented before a court or charged with a recognisable criminal offence. Amnesty International has documented torture and other ill-treatment of these detainees, in some cases resulting in coerced confessions and death.

A new law enacted in May 2012 undermines freedom of expression by prescribing prison sentences for spreading false rumours, propaganda, or information with the aim of harming national defence, “terrorizing people”, or “weakening citizens’ morale” during war time. This could have specific consequences for those who may be prosecuted in Libya for criminal offences associated with the al-Gaddafi regime. Defence lawyers may be reluctant to represent them for fear of being prosecuted for statements they made in the defence of their clients. Defence witnesses may refuse to give evidence.

Another new law establishes selective justice by providing amnesty to anti-Gaddafi fighters if their actions –potentially including crimes under international law – served the “17 February Revolution.”

These fair trial concerns have prompted Amnesty International to call repeatedly on the Libyan authorities to surrender Saif al-Islam Gaddafi to the ICC and to focus on rebuilding the national justice system in order to be able to investigate and prosecute all other cases involving crimes committed by both sides in accordance with international standards.

However, some claim that the ICC cannot determine that a case is admissible because the national proceedings would be unfair.  In his article, The Shadow Side of Complementarity: the effect of Article 17 of the Rome Statute on national due process, Kevin Jon Heller contends that Article 17

permits the Court to find a State ‘unwilling or unable’ only if its legal proceedings are designed to make a defendant more difficult to convict. If its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State no matter how unfair those proceedings may be.

Following Saif al-Islam Gaddafi’s capture, the ICC Prosecutor also appeared to question the relevance of fair trial concerns in the process stating in a press conference shown by Al-Jazeera: “[w]e are not a human rights Court. We are not checking the fairness of the proceedings. We are checking the genuineness of the proceedings.”

However, these interpretations are in the minority. Read the rest of this entry…