The International Criminal Court (ICC) decision on May 21, 2014, rejecting Libya’s bid to prosecute Saif al-Islam Gaddafi nationally sharpens Tripoli’s outstanding obligation to surrender him to The Hague. Saif al-Islam Gaddafi, a son of Muammar Gaddafi, is wanted by the ICC for his alleged role in trying to suppress the country’s 2011 foreign-backed insurrection.
An ICC appeals chamber confirmed an earlier decision rejecting Libya’s bid to prosecute Gaddafi in the country. The court held that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC, a requirement under the ICC treaty for such challenges. The ICC also held that Libya was genuinely unable to carry out an investigation of Gaddafi. The court’s rejection of Libya’s appeal underlines further Libyan authorities’ obligation to surrender him immediately for proceedings in The Hague. The decision is final and no further appeal is available.
“The ICC appeals decision only reinforces Libya’s long overdue obligation to surrender Saif Gaddafi to The Hague,” said Richard Dicker,international justice director. “Libyan authorities should show the same respect for ICC procedures as they did when they first engaged the court on Gaddafi’s case.”
Libya filed a legal bid at the ICC on May 1, 2012, to prosecute Gaddafi domestically. The ICC said Libya could postpone surrendering him to The Hague until the court made its decision. On May 31, 2013, the ICC judges rejected Libya’s bid and reminded the authorities of their obligation to surrender him. On June 26, Libya appealed the decision and requested permission to delay turning Gaddafi over pending a ruling. On July 18, an ICC appeals chamber rejected this request and noted that Libya was obliged to surrender Gaddafi to the court while Libya’s appeal was considered.
The current escalation in violence in Libya, which according to media reports left at least 70 dead in Benghazi and four in Tripoli, as well as dozens injured this past week, risks derailing the country’s fragile transition even further. The situation also showcases the difficulties Libya’s judiciary will have in providing fair trial guarantees to Gaddafi and other defendants, Human Rights Watch said.
Successive interim authorities have failed to rein in para-militaries and establish law and order in an environment of near impunity. Since May 16, 2014, a series of clashes between forces loyal to a retired general of the Libyan army rallying to weed out other militias accused of committing violations in Benghazi have destabilized the eastern region, and have now spread to the capital, Tripoli, which has seen an attack on the parliament by militias who oppose it.
Libya has promised to abide by its obligations to the court. In submissions to the ICC, Libya said it does not dispute that it must cooperate and that the court had reinstated Libya’s obligation to surrender Gaddafi. But Libyan authorities have failed to turn Gaddafi over to the ICC. Gaddafi is being detained at an undisclosed location by the Abu Baker al-Siddiq Brigade of Zintan, which says it operates under Defense Ministry authority.
Libya has carried on with domestic proceedings against Gaddafi as well as against Abdullah Sanussi, the Gaddafi-era intelligence chief who is also an ICC suspect, and other senior Gaddafi-era officials. The trial of the two ICC suspects and 35 other people, mostly Gaddafi-era officials accused of serious crimes during Libya’s 2011 uprising, began on March 24 in a specially designated courtroom in Al-Hadba Corrections Facility in Tripoli. Subsequent trial sessions took place on April 14, April 27, and May 11. The next session is scheduled for May 25.
Gaddafi was not in the courtroom for the first two trial sessions in Tripoli, and instead remained in Zintan. Gaddafi also did not appear at any of the pretrial sessions, as the head of the guard force detaining him refused to comply with the general prosecutor’s summons to transfer him to Tripoli. The guard force chief told Human Rights Watch he feared for the safety of his own men and Gaddafi due to the volatile security situation in Tripoli.
For the third and fourth trial sessions, authorities set up a so-called closed circuit link up for Gaddafi, though it is unclear whether Gaddafi consented to this arrangement. On March 24, parliament passed a law amending articles 241 and 243 of the Libyan Code for Criminal Procedure, allowing defendants, expert witnesses, and others to testify via “modern communication methods” without having to be in the courtroom. The law stipulates that these measures should be used only in urgent cases and if officials fear for the defendant’s safety.
On January 23, Human Rights Watch interviewed Gaddafi in an office at a base in Zintan. During the visit, Gaddafi told Human Rights Watch that he has not had access to a lawyer of his choosing since his apprehension in November 2011, and described multiple interrogation sessions without legal counsel. Gaddafi also said he had not had the chance to review the evidence against him.
United Nations Security Council Resolution 1970, which referred the situation in Libya to the ICC, requires the Libyan authorities to cooperate fully with the court, a binding requirement under the UN Charter, even though Libya is not a party to the treaty that established the court. Members of the UN Security Council, which unanimously gave the ICC authority to investigate in Libya, have a special responsibility to make clear that Libya should comply with the court’s ruling without delay, Human Rights Watch said.
“The Security Council gave the ICC jurisdiction to investigate and ordered Libya to cooperate,” Dicker said. “Council members should now send a clear signal to Tripoli that the time has come to make good on resolution 1970 and abide by the court’s rulings.”
On June 7, 2013, Gaddafi’s ICC-appointed defense team asked the ICC pretrial judges to find that Libya had failed to cooperate with the court by failing to surrender Gaddafi immediately after the ICC rejected the bid to try him in Libya. On July 23, the defense made an additional request for a finding of non-cooperation, and on December 9, asked for an immediate ruling on those requests. On March 10, 2014, in the absence of a ruling, the defense asked permission to appeal the issue of whether the ICC pretrial judges made a mistake by failing to issue a decision on the defense requests in a timely manner.
On May 1 the ICC prosecutor, in a filing to the court’s judges, noted with concern reports that Libya intended to proceed with its domestic prosecution of Gaddafi, despite its continuing obligation to hand him over to the ICC. Further, when the ICC prosecutor briefed the Security Council on Libya on May 13, she called on the authorities there to immediately surrender Gaddafi to The Hague. On May 15, an ICC judicial chamber issued a decision asking Libya to inform the court by May 28 of the status of its outstanding obligations, including surrendering Gaddafi to the court.
Article 87 of the ICC treaty permits the court to issue a finding of non-cooperation. Because the ICC has jurisdiction in Libya as a result of a Security Council referral, such a finding would be sent to the Security Council for follow-up. The Security Council then would have a range of options, including resolutions, sanctions, and presidential statements.
On October 11, 2013, Libya succeeded in a separate bid at the ICC to prosecute Sanussi domestically. The ICC judges decided that the case against Sanussi before the ICC was subject to domestic proceedings and that Libya was able and willing genuinely to carry out proceedings against him. Sanussi’s ICC defense team appealed that decision, and a ruling on the appeal is pending at the ICC. The ICC judges have told Libya to abstain from any action during the appeal process that would make it impossible for the ICC case against Sanussi to resume should the earlier decision be reversed.
A Human Rights Watch investigation in January 2014 revealed that Libya has failed to grant Sanussi basic due process rights, raising serious concerns about whether Libya can provide him a fair trial that meets international standards. On May 15, an ICC judge held that Libya had failed to discharge its duty to organize a privileged visit to Sanussi by his ICC defense team. The judge asked Libya to report by May 28 on the status of this outstanding obligation, among others.
In line with the ICC treaty, Libya can only file one bid to try Gaddafi or Sanussi for the crimes covered by the ICC arrest warrants. Any additional bids can be made only in exceptional circumstances and with the ICC judges’ permission.
“Libya assured the UN Security Council it would cooperate with the court,” Dicker said. “By respecting the ICC’s judicial process and surrendering Gaddafi to The Hague, the authorities will send an important message about their commitment to the rule of law.”