Today the government of Libya, represented by Professor Philippe Sands QC, Professor Payam Akhavan and Ms Michelle Butler, filed a submission with the International Criminal Court (ICC) pursuant to Article 19 of the ICC Statute (click here for the full text). The application was brought under Article 19(2)(b) of the Rome Statute, to challenge the admissibility before the ICC of the case concerning Saif Al-Islam Gaddafi (‘Mr Gaddafi’) and the case concerning Abdullah Al-Senussi (‘Mr Al-Senussi’). In accordance with the principle of complementarity set forth in Article 17 of the Rome Statute, Libya submitted that this case is inadmissible on the grounds that its national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts of murder and persecution, committed pursuant to or in furtherance of State policy, amounting to crimes against humanity (par. 1). In paragraph 2 of the application, Libya contends that to deny the Libyan people this historic opportunity to eradicate the long-standing culture of impunity would be manifestly inconsistent with the object and purpose of the Rome Statute, which accords primacy to national judicial systems. Libya submitted that it seeks to fulfil that duty and is making every effort to take measures ‘at the national level’, as required by the ICC Statute, and as intended by its drafters. In Libya’s view, this is a unique opportunity for the Court to uphold ‘positive complementarity’ and to encourage other States emerging from conflict and mass-atrocities in pursuance of genuine national proceedings.
Part I of the application is entitled Introduction and Background. Paragraph 5 outlines in the Muammar Gaddafi regime’s gross human rights violations. Paragraphs 6-8 are devoted to Libya’s 2011 national liberation struggle. The establishment of the NTC and challenges of post-conflict security are dealt with in paragraph 9. The issue of progress already made in Libya is addressed in paragraph 10. In the section on National ‘ownership’ of the trials of Mr Gaddafi & Mr Al-Senussi as a foundation for reconciliation, democracy, and rule of law, which extends from paragraph 11 to 15, the positive developments that have occurred in Libya over the past months are described as ‘exceptional and encouraging’.
The procedural history of the case is given in Part II of the application in paragraphs 16-38.
Part III of the application deals with the Libyan Investigation and the Libyan Criminal Justice System. This part starts with addressing the issue of confidentiality of investigative materials under Libyan law during the investigation phase of proceedings (paras. 39-41). The progress of the Libyan investigation with respect to Mr Gaddafi is outlined in paras. 42-29. Further the application notes the progress of the Libyan investigation of Mr Al-Senussi (paras. 50-52). The issue of the independence of the Libyan Judiciary is addressed in paragraphs 53-55. In this regard the application notes that the independence of the judiciary is not merely now constitutionally enshrined, but is also protected under several provisions of domestic Libyan law, including Article 52 of the Judicial System Law and Article 31 of the Freedoms Act (par. 55). The issue of Libya’s general fair trial guarantees is dealt with in turn (paras. 56-57). Another important issue addressed in Part III is also the Libyan criminal procedure and the specific due process guarantees applicable during the various stages of a domestic criminal case (paras. 58-67). The issue of the death penalty under Libyan law is addressed under paragraphs 66 and 67 of the application. Thus, in case of it being pronounced, the sentence may not be executed until all potential avenues of legal appeal have been exhausted (Article 400 Criminal Procedure Code) and there is also a possibility under Libyan law for commutation of a death sentence to one of life imprisonment in cases where the family members of victims ‘forgive’ the convicted person.
Part IV deals with the Scope of Libya’s Challenge to Admissibility before the ICC. Under the Scope of Challenge heading (paras. 68-75), Libya submits that is exercising its sovereign right to challenge admissibility pursuant to Article 19(2)(b) of the Statute ‘on the ground that it is investigating or prosecuting the case’ (par. 68). In paragraph 73, Libya submitted that its principal submission is that the proper scope of this admissibility challenge, relates only to the case against Mr Gaddafi. In the alternative, if, notwithstanding the above, the Chamber considers that the term ‘case’, within the meaning of Article 19 does refer to the proceedings against both Mr Gaddafi and Mr Al-Senussi as a whole, the Government of Libya submitted that it had provided sufficient evidence concerning the investigation and prosecution of both individuals and hereby challenges the admissibility of the case against each and both of these two persons (par. 74). Under the Inadmissibility of Security Council referrals heading (paras.76-81), Libya submitted that the principle of complementarity, applies with equal force and effect irrespective of the purported basis for the exercise of jurisdiction under Article 13 (that is including Security Council referrals – par. 77). In its application Libya addressed also the issue of the Same Person/Same Conduct test (paras. 82-87). In addressing the issue of the burden of proof, Libya quoted the Court’s own finding in the Kenya case stating ‘To discharge that burden, the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are on-going.’ (see par. 88). With regard to the issue of the ‘genuineness’ of judicial action, Libya submitted that beyond evidence of judicial action, Libya is not required at this stage of this Article 19 proceeding to provide any further proof that its national judicial system is not ‘unwilling or unable genuinely to carry out the investigation or prosecution’ within the meaning of Article 17(l)(a) (par. 92).
Part V of the application deals with the Postponement on the Surrender Request (paras. 103-106). Libya submitted that with the filing of this Article 19 application on 1 May 2012, an admissibility challenge can now be definitively said to be ‘before the Chamber’ for the purposes of interpretation of Article 95 of the Statute. Accordingly, the Libyan Government requested a postponement and suspension of the Pre-Trial Chamber’s order to surrender Mr Gaddafi, pending a final determination of this challenge.
In conclusion (Part VI), Libya asked the Chamber to postpone the order for surrender, pursuant to Article 95 of the Statute, pending a determination of its Article 19 admissibility challenge (par. 107). Furthermore, with respect to the admissibility challenge under Article 19, the Libyan Government requested the Chamber to:
i. declare the case inadmissible; and
ii. quash the Surrender Request. (par. 108).
Page 58 of the application contains a List of the Annexes filed with this application.
It remains to be seen how the other parties to the proceedings will reply to this application and how the Chamber will decide.
Great article, summarises the key points on admissibility. However, I would like to add that though the Libya government has gone to such great lengths to try Mr.Gadaffi, the facts on the ground show that justice could be done in Libyan courts, although it will not be seen to be done by the rest of the world.