Q & A with Saif Gaddafi’s Lead Counsel Before the ICC John R.W.D. Jones, QC

Interview Conducted by Taegin Reisman

John R.W.D. Jones, QC is a lawyer based in London and the lead counsel representing Saif al-Islam Gaddafi before the International Criminal Court (ICC). He agreed to speak with the International Justice Monitor about the status of his client’s case before the ICC.

TR: What have the major challenges been in your representation of Mr. Gaddafi?

JJ: There are a great many challenges, but there are restrictions as to what I can say about it given that it is an ongoing case. The obvious challenge is that Mr. Gaddafi remains in Libya, detained incommunicado and in solitary confinement, facing capital charges, without access to a lawyer, family or friends, when he should have been delivered to the ICC months ago.

TR: Why are you pushing so hard to have the ICC hear the case? What would your client face if he were to face trial in Libya?

JJ: Because it’s the law. The ICC has ruled that Saif Gaddafi should be delivered to The Hague and so that must take place. The law is the law. Libya is flouting the ICC’s orders, and thereby violating international law. Neither the ICC nor the international community should tolerate it. To do so undermines the foundations of the international legal order and imperils the ICC’s credibility as an institution. As with any institution, once the ICC loses credibility, it may as well cease to exist.

All the indications are that, if tried in Libya, Saif Gaddafi will face a show trial followed by imposition of the death penalty.

TR: Despite the ICC court orders to bring Gaddafi to The Hague, Libya was supposed to start a trial against him and other former Libyan officials on April 14, but the trial never started. Can you discuss where this case stands now?

JJ: I cannot, as I am not Mr. Gaddafi’s lawyer in the trial in Libya, which should not be taking place. However what I can say is that the “trial” is taking place under circumstances where even the pretence of due process has been abandoned. Mr. Gaddafi will be facing trial on charges of the utmost gravity, which carry the death penalty, by video-link, and where he has no lawyer and has had no opportunity to examine the allegedly 1,000s of pages of evidence against him. Moreover, he shouldn’t even be in Libya but should have been delivered to The Hague months ago. That is plainly nothing but a show trial. It started on 14 April, and was adjourned to 27 April, but as to where it stands now or where it is going, I think no one knows and it wrongly dignifies this process to call it a “trial.”

TR: The Libya situation was referred to the ICC by the United Nations Security Council (UNSC) in Resolution 1970. Why do you think there has been little involvement by the UNSC since?

JJ: There are plainly geo-political considerations at stake. Unfortunately, many powerful countries, including the UK, regard the ICC as a foreign policy tool to be switched on or off at will. If it is not politically convenient to raise the issue of Libya’s non-surrender to the Court, those countries will not do it, and so it will not appear on the UNSC’s agenda. It is noteworthy that the UK, despite claiming to be a supporter of the ICC, has never once called on Libya to surrender Saif Gaddafi to the ICC.

At the same time, the UNSC is to a certain extent entitled to wait until the ICC reports Libya’s non-compliance to the UNSC. The ICC has yet to do so.

TR: In her last presentation to the UNSC on the investigation in Libya in November 2013, ICC prosecutor Fatou Bensouda urged the government of Libya to hand over Gaddafi to the ICC “without further delay.” Can anything more be done by the UNSC to get Libya to comply with the court?

JJ: The UNSC has done nothing so far, so there is no question of whether it can do “anything more.” What you cite is simply a speech by the Prosecutor to the UNSC.

The UNSC could do a lot more. It could pass a resolution, condemning Libya for the non-surrender of Mr. Gaddafi and for its failure to comply with the ICC’s orders, and by extension breaching Resolution 1970, in which the UNSC decided that the Libyan authorities would “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” It could then, in due course, impose sanctions on Libya.

TR: What is the most important thing for those of us who monitor the justice process, particularly at the ICC, to take away from this case?

JJ: I think justice monitors who are following the ICC and other international tribunals need to be very critical, in an informed way, of the Court, including all its organs, and critical of the ICC’s so-called supporters. You should not take what anyone says at face value and instead look at the political realities and interests of the various players. As a sociological study, the ICC does not, in my experience, behave like any other court – domestic or international – at which I have worked. Justice monitors need to probe the whys and wherefores of this very carefully, and without any undue deference to the Court. “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man.” (Lord Atkin)  That applies as much to the ICC as to any other legal system.

TR: You’ve been practicing law for over 20 years. Why were you drawn to representing clients accused of major international crimes, such as war crimes and crimes against humanity?

JJ: I was drawn to this area of law, first of all, working with the first President of the ICTY, Antonio Cassese, as his law clerk, on the first ICTY judgments, and then at the ICTR, with the Trial Chamber. I then moved into defense work as a natural progression when I returned to practice at the Bar. I’m interested in these cases because they usually involve a high degree of politics and history, as well as law, so in every case, one has to learn a whole new matrix of facts about a country and its breakdown. It is fascinating to work at the interface of law and international politics in this way. The stakes are also usually very high, with everything at stake for the client. No one should assume that those accused of major international crimes are guilty, nor assume that there is “no smoke without fire.” In both of my concluded cases at the ICTY, my clients were acquitted of every single charge against them (Naser Oric and Mladen Markac). The challenges in representing persons who are not guilty, but against whom there is popular and institutional presumption of guilt, are enormous, and the rewards of achieving a just result, therefore all the greater. Mr. Gaddafi is the first client I have represented before the ICC.

TR: How does working as a defense lawyer in the ICC system compare to other international tribunals you have represented clients in, such as the ICTY, SCSL, and STL?

JJ: At the ICC, we have filed urgent motions regarding our client, and applications for leave to appeal, which have not been ruled on for months – not rejected, just simply not ruled upon. I have never come across that at any of the tribunals where I have worked, nor in my domestic practice.

TR: Are you appointed by the ICC or did Mr. Gaddafi hire you?

JJ: I was appointed by Mr. Gaddafi’s family in April 2013. Mr. Gaddafi has no way of directly appointing a lawyer, as he is being held in incommunicado detention. Mr. Gaddafi had previously indicated to the ICC’s Office of Public Counsel for the Defense that he wanted his family to designate his counsel.

The ICC has recognized that appointment, and I am remunerated under the ICC’s legal aid scheme, not by Mr. Gaddafi or his family.