Ben Emmerson was assigned as legal counsel to Abullah al-Senussi while the ICC decision was pending. He intends to appeal the decision, which the ICC has allowed.
I do not know Abdullah’s status with regards to legal counsel inside Libya. From what I understand, none of the 30 prisoners in Tripoli’s mass mock tribunal have legal representation. The prisoners have no witnesses to testify on their behalf. Neither are they permitted to speak in their own defense.
The decision from the ICC is reprehensible, the betrayal profound.
By their own criteria, the decision should be invalid since Libya has no functioning government, has not conducted impartial investigations, has not abandoned the death penalty, has not permitted legal counsel access to Abdullah, has denied Abdullah urgently needed medical care, prevented any possibility of a defense and witnesses to testify for the accused and cannot protect lawyers, judges, prisoners or potential witnesses from assassination by militias.
Regardless of the 152 pages of convoluted arguments presented to justify the unjustifiable, the decision provides carte blanche for the terrorist-run, lawless “authorities” to murder an innocent man with impunity.
Case: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi
On 11 October 2013, Pre-Trial Chamber I of the International Criminal Court (ICC) decided that the case against Mr Al-Senussi is currently subject to domestic proceedings conducted by the Libyan competent authorities and that Libya is willing and able genuinely to carry out such investigation. Therefore, the Judges concluded that the case is inadmissible before the Court, in accordance with the principle of complementarity enshrined in the Rome Statute, founding treaty of the ICC.
The Prosecutor and the Defence may appeal this decision and the Prosecutor may submit a request for review of the decision when she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.
Libya had filed a challenge to the admissibility of the case on 2 April 2013. Other parties and participants to proceedings subsequently filed written submissions. After careful consideration of the submissions and the evidence provided by the parties and participants to the admissibility proceedings, the Chamber found that the evidence submitted by Libya is sufficient to conclude that the Libyan and the ICC investigations cover the same case and that concrete and progressive steps are being undertaken by the domestic authorities in the proceedings against Mr Al-Senussi. The Chamber’s decision took into account, holistically, the fact that Al-Senussi is detained under State custody, the quantity and quality of the evidence collected as part of the domestic investigations, the recent transfer to the Accusation Chamber of the case against Mr Al-Senussi and his other 37 co-defendants, the example of certain judicial proceedings conducted to date against other former Gaddafi-era officials, and the efforts made to resolve certain issues in the justice system by recourse to international assistance.
This decision has no bearing on the case against Saif Al-Islam Gaddafi.
The situation in Libya was referred to the ICC Prosecutor by the United Nations Security Council, through the unanimous adoption of Resolution 1970 on 26 February 2011. On 27 June 2011, Pre-Trial Chamber I issued warrants of arrest for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces. On 22 November 2011, Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to his death.
On 31 May 2013, Pre-Trial Chamber I rejected the challenge to the admissibility of the case against Saif Al-Islam Gaddafi. The Judges acknowledged Libya’s efforts to restore the rule of law. However, the Chamber found that the evidence submitted was not sufficient to consider that the domestic and the ICC investigations cover the same case and concluded that Libya was unable genuinely to carry out the proceedings against Mr Gaddafi. Libya appealed this decision. The Appeals Chamber will issue its final determination on this appeal in due course.
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