By Ronda Hauben
Viva Libya !
On May 13, the Chief Prosecutor for the ICC, Fatou Bensouda, appeared before the UN Security Council to present the “Seventh Report of the Prosecutor of the ICC to the UN Security Council Pursuant to UNSCR 1970 (2010)”.
In her statement to the Security Council, she said (1):
“To be absolutely clear, the Government of Libya should immediately surrender Saif Al-Islam Gaddafi to the Court (ICC).”
She did not ask for any action by the UNSC to require that Libya abide by its obligation. Instead the ICC Prosecutor asked the Security Council to provide a contact group composed of UN nations ”to support the evolving relationship between the ICC and the Government of Libya.”(2)
In May of 2013, a year earlier, the ICC Pretrial Chamber ruled that the Libyan government was not able to conduct a fair trial for Mr. Gaddafi and that he had to be released from the captivity he is being held in in Libya and transferred to The Hague.
Though it is over a year since that decision, the Libyan government has failed to fulfill its obligation to surrender Mr. Gaddafi to the ICC. Instead in April 2014 Libya began a show trial of a number of people including Mr. Gaddafi, a trial seriously violating Mr. Gaddafi’s due process rights. One of the three UN observers who attempted to go to Libya to observe the trial was detained by the Libyan government and accused of possessing written material indicating possible “sorcery”. (3)
Then on Wednesday, May 21 2014, the ICC announced its rejection of the Libyan government’s appeal of the 2013 ICC decision. Instead of the Libyan government acting to surrender Mr. Gaddafi to the ICC in The Hague, it continued its show trial in Libya in contravention of the obligations it has to the ICC.
Since his capture in November 2011 and imprisonment in Libya ever since, Mr. Gaddafi has been held incommunicado, denied the right to speak with a lawyer or any family or friends. He has been denied the right to examine the case against him, including denying him the right to examine the thousands of pages of documents that the Libyan government is submitting as evidence against him. He has been denied the right to prepare a defense and to be present at his trial in person. A video link was set up from Zintan where he is being held captive to the courtroom in Tripoli for the show trial, but that is only a continuation of the denial of his right to be present in person with a lawyer of his choosing at his trial.
Libya is a party to the International Covenant on Civil and Political Rights (ICCPR). In a decision issued in 2013, the Working Group on Arbitrary Detention under the Human Rights Council noted that Mr. Gaddafi’s detention was a violation of a number of his rights guaranteed under the ICCPR. Based on the circumstances in this case, the Working Group Opinion stated that the Libyan government should discontinue any cases against Mr. Gaddafi and end his detention. See Human Rights Council, Working Group on Arbitrary Detention, Opinion No. 41/2013 (A/HRC/WGAD/2013)(4)
John R.W.D. Jones Q.C. is the lead lawyer chosen by Mr. Gaddafi’s family, and provided by the ICC’s Office of the Public Counsel for the Defense (OPCD) to defend Mr. Gaddafi at the ICC. Responding to a question about the ICC case against Mr. Gaddafi, Mr. Jones noted that there are steps that the UN Security Council can take to get Libya to comply with the Court.
Mr. Jones explained that the Security Council, “could pass a resolution, condemning Libya for the non-surrender of Mr. Gaddafi and for its failure to comply with the ICC’s order, 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.”(5)
Considering such possible actions by the UN Security Council to encourage Libya to fulfill its obligations with respect to the ICC ruling in Mr Gaddafi’s case helps to highlight a significant aspect of the relationship between the UN Security Council and the ICC. It is important to note that the Report of the ICC to the Security Council is not made by any neutral official from the Court. Instead it is made by the Office of the Prosecutor which has a clear bias and that bias has no mechanism of being countered, as it might be if there were to also be a report from the Office of the Public Counsel for the Defense.
The Office of the Public Counsel for the Defense, however, is not scheduled to present its version of the ICC Report to the Security Council. This is a significant demonstration of the lack of impartiality in the relationship between the ICC and the Security Council.
While a number of the members of the Security Council claim they are ardent supporters of the Court and of the “justice” they claim the Court will provide, there is little or no effort at the Security Council in particular, or at the UN in general, to provide the elements that are needed to provide for a fair trial for ICC defendants such as Mr. Gaddafi.
In an interview in April, Mr. Jones was asked(6):
“The Libyan 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?”
“There are plainly geo-political considerations at stake. Unfortunately many powerful countries, including the U.K. 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.”
Many abuses by the Libyan government, the ICC, and the Security Council in the process of implementing UNSC Resolution 1970 (2011) and 1973(2011) have been documented. These resolutions referred Libya to the ICC (8) and provided cover for regime change in Libya.(9)
Mr. Jones has had experience representing defendants at other international tribunals. This is the first case he has had at the ICC. The experience he has had at the ICC, he notes, is different from “any other court – domestic or international” at which he has worked. Asked to elaborate about this difference, he explains, “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.”(10)
The experience of what has happened in Libya with the UN Security Council referrals to the ICC, like that of Saif Gaddafi, presents a pattern of abuse and the denial of fundamental rights which have stemmed from the Security Council action on Libya.
Such abuse is in sharp contradiction with the claims of “justice” that some members of the Security Council proclaim will be the outcome of Security Council referrals of non ICC Treaty member to the ICC. Yet as this experience at the Security Council shows, the Security Council has paid little attention to overseeing or even monitoring what is happening with its referral of Libya and Libyans to the ICC. On the one hand, there is a willingness on the part of several members of the UN Security Council to repeat the possibility of such abuse in other conflicts under the claim of “justice.”(11) On the other hand, the members of the Council who recognize the need to raise questions about the result of such referrals are subjected to abuse at the Security Council itself. Similarly, the UN Secretary General’s Office appears to have made no effort to consider the past experience of such a referral and instead makes the intimidating claim that any nation challenging such a referral is responsible for the ‘denial of the fundamental right to justice.” Actually, as the situation regarding Mr. Gaddafi demonstrates, there is no justice involved in the experience of the Security Council referral of Saif Al-Islam Gaddafi to the ICC and his subsequent treatment by the Libyan government.
1) See S/PV.7173 Tuesday, 13 May 2014
2) The Chief Prosecutor told the UN Security Council, “It is my Office’s sincere hope that the proposal for establishing a contact group will be followed up as soon as possible. This will send a clear message to the Government of Libya that its key partners intend to follow through on their pledges to support justice initiatives and to support the evolving relationship between the ICC and the Government of Libya.”
“Guards at a Tripoli prison arrested Ahmed Ghanem, an official observing the trial of two sons of Muammar Gaddafi, earlier this month, saying they suspected him of having written materials containing spells or enchantments….UNSMIL was dismayed by the detention of Mr Ghanem for an hour and a half as well as what followed in terms of defamation and false accusations through some social media pages,” said a UN statement. “The mission affirms that it scrupulously respects the Libyan authorities’ legal, security and administrative procedures when its representatives attend trials.”
8) See for example the article, “Ocampo Misleads UN Security Council on Saif Al Islam Gaddafi’s Detention”
9) “Lessons from UN Security Council Implementation of Resolution 1973 on Libya”
11) See for example, the effort of several in the Security Council to refer Syria to the ICC on May 22 2014.
Security Council Meeting Thursday, 22 May 2014, S/PV.7180