ICC Pre-Trial Chamber Issues Arrest Warrant for Gaddafi (and 2 others)

On Monday, the International Criminal Court’s Pre-Trial Chamber I issued a decision acceding to the ICC Prosecutor’s request for an arrest warrant for Libyan leader Muammur Gaddafi, his son Saif Al Islam Gaddafi and head of the Libyan military intelligence Abdullah Al Sanusi (see previous post on the request). The situation in Libya was referred to the ICC by the UN Security Council under Security Council resolution 1970. The three persons who were the  subject of this request were alleged by the Prosecutor to be responsible for crimes against humanity within the jurisdiction of the ICC Statute. As was widely expected, the Pre-Trial Chamber has issued warrants of arrest for all 3 accused persons. In its decision, which was based on Article 58 of the ICC Statute, the Chamber found that there are “reasonable grounds to believe” that all three are responsible for murder and persecution as crimes against humanity under Articles 7(1)(a) & 7(1)(h) of the Statute. Contrary to the request of the Prosecutor that the request for surrender should be directed solely to Libya, the Chamber decided that the request for surrender should be addressed to

“to the competent Libyan authorities in accordance with rule 176(2) of the Rules and to (i) all States Parties to the Statute; (ii) all of Libya’s neighboring States; and to (iii) the United Nations Security Council members that are not States Parties to the Statute;”

One pleasing point to note is that the Pre-Trial Chamber has dealt with this request pretty quickly. The Prosecutor’s request was made on May 16 (see previous post) and a decision has been made within 6 weeks. This contrasts very favourably with the 8 months that it took for the ICC to make an initial decision on the arrest warrant for Sudanese President Omar Al Bashir. Given that these proceedings are ex parte (i.e without defence representation) and the Chamber appears to rely almost exclusively on material submitted by the Prosecution there is no reason for a delay in the decision.

A second point to note is that the Chamber in dealing with the personal jurisdiction of the Court over these Libyan accused stated that:

“Insofar as the situation in Libya has been referred to the Court by the Security Council acting pursuant to article 13(b) of the Statute, the present case falls within the jurisdiction of the Court despite the fact that it concerns the alleged criminal liability of nationals of a State that is not party to the Statute and for crimes which have been committed in the territory of a State that is not party to the Statute. At this juncture, the Chamber also notes that, consistent with its findings in the Al Bashir Case, the official position of an individual, whether he or she is a national of a State party or of a State which is not party to the Statute, has no effect on the Court’s jurisdiction.” (para. 9)

The two points made here are no more than a reiteration of the position taken in the Bashir Arrest Warrant decision (paras. 40-41). The point in the first sentence is clearly right. The ICC’s jurisdiction extends to nationals of non-parties in a number of cases and certainly where the crimes are commited in the territory of a State in respect of which the Security Council has made a referral. In the second sentence, the Chamber is saying that the ICC jas jurisdiction over government officials even if those individuals would ordinarily have immunity under international law from the jurisdiction of foreign States. In short, there is, in the view of the Chamber, no immunity from ICC jurisdiction. No reference is made to Article 27 of the Statute but this provision is referred to in the Bashir case. Unlike Bashir, the PTC does not attempt to flesh out its reasoning here. Also unlike Bashir where the PTC made it clear that its determination on immunity and official position was subject to further determination on the matter, the PTC in Gaddafi doesn’t reserve the right to change its mind.  As I’ve said before I think the position taken in Bashir (and here also) gets to the right result (because of the UN SC referral) but I don’t think the general statement there is no immunity even for officials of non-State parties is correct. To say this is to read the Statute in isolation from general international law. More importantly, the PTC only deals with immunity from the jurisdiction of the Court and fails to address whether the ICC could require States to ignore head of State immunity by arresting Gaddafi. The Court did not mention Art. 98, a provision which requires the Court not to request surrender from parties where such a request would require a State to violate the immunity of third States. Basically, the Court has treated this provision as if it did not exist.

The PTC does not give any reason for rejecting the Prosecutor’s request that the surrender request be directed only at Libya. The PTC has followed its previous practice in directing the request for surrender rather broadly. Dov Jacobs has argued in his blog (foreshadowing the Prosecutor’s argument in this case) that since Art. 89 says the court may make a request for surrender to “any State on the territory of which that person may be found”, the Court may only make a request to the State on whose territory the accused appears to be present.  I think this is a rather narrow interpretation, one not required by the text and one which would restrict the effectiveness of ICC requests for surrender. The provision allows requests to any territory on which the person may be found. I don’t see how this precludes territories that the person may go to. Clearly the request will not give rise to any obligations until the person is actually on the territory. The other approach means that the Court has to know where the person is or will go before directing that State to arrest and surrender.

One final point on these proceedings relating to requests for arrest warrants. I think it is rather unfortunate that the PTCs issue these lengthy decisions  at this preliminary stage (and even at the confirmation of charges stage). The test at the stage of the request for an arrest warrant under Art. 58 is that there are reasonable grounds to believe that crimes within the jurisdiction of the Court have been committed. This is quite a low standard. As the Appeals Chamber has pointed out in the Bashir case to say there are reasonable grounds to believe does not mean that this is the only conclusion or indeed the only reasonable conclusion that may be drawn from the facts. Making these lenghty decisions which give the appearance of being reasoned decisions are prejudicial to the accused as they suggest that the Chamber is making findings of fact and of law. To my mind the approach of the Court undermines the presumption of innocence and suggests that the ICC has already decided on guilt. Many in the media appear to treat the decision in this way. There appears to be little understanding that at this stage saying thera are reasonable grounds to believe only means that is a case to answer. It does not mean guilt. Indeed even the prosecutor doesn’t seem to understand what Art. 58 decisions mean (see post on his inaccurate statements regarding the Bashir decision). Even the Court seems to get carried away and suggests in places that it is making definitive determinations about guilt. For example in paras 78 & 79:

“The Chamber further finds that Muammar Gaddafi and Saif Al-Islam Gaddafi contributed to the implementation of the plan by assuming essential tasks that led to the commission of the crimes listed in the Application. The contributions of both Muammar Gaddafi and Saif Al-Islam Gaddafi were essential for the realisation of he plan, since both had the power to frustrate the commission of the crimes by not performing their tasks.

Muammar Gaddafi’s contributions were paramount for the implementation of the plan as he, inter alia: (i) conceived and designed the plan and oversaw its implementation; (ii) issued orders to his closest direct subordinates in the Security Forces, among them Abdullah Al-Senussi, to mobilize troops in order to quell the popular demonstrations;  (iii) issued orders and publicly incited the population to civilians perceived to be dissidents  . . .”

This looks very much like a determination of guilt. There is nothing in Art. 58 that requires these lengthy decisions. Indeed the provision says the warrant should include a concise statement of facts alleged. The Chamber should just keep to that.