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CR2018 02919
CR2018 02919
Pursuant to Pre-Trial Chamber I's instruction, dated 08/06/2018, this document is reclassified as "Public"
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PRE-TRIAL CHAMBER I
SITUATION IN LIBYA
IN THE CASE OF
Confidential
with Confidential Annexes A, B, C, H and Public Annexes D, E, F and G
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Court to:
The Office of the Prosecutor Counsel for Dr. Saif Al Islam Gadafi
Ms. Fatou Bensouda Mr. Karim A. A. Khan QC
Mr. Julian Nicholls Dato’ Shyamala Alagendra
Mr. Essa Faal
Mr. Khaled Al Zaidy (Libyan National
Counsel)
The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence
Ms. Paolina Massidda
REGISTRY
Registrar Counsel Support Section
Mr. Peter Lewis
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“Whereas the Court found that the accused committed all these crimes as described in detail
in the grounds of judgment, the accused shall be convicted as established by the
Statement based on the above and pursuant to Article (277/2). Whereas regarding the
penalty, the accused committed a large number of serious crimes, since he ordered
and incited the killing of the protesters, mobilized armed groups to that end and
supplied them with weapons, provided financial and material support to the armed
groups that were fighting the people, brought African mercenaries to fight his compatriots,
ordered that cities be besieged and arbitrarily bombed with heavy weapons and
incited tribal dissension. He also ordered that sea ports be besieged, incited
rape in the besieged cities and approved such policy, ordered that civilian facilities be struck
by military aircraft in addition to other crimes, all of which aimed to undermine national
security, wreak havoc and exact revenge on the Libyan people who defected from the regime,
which the accused thought would be delegated to him after his father since he told Defendant
No. 4 “This seat is mine”. Whereas the crimes committed by the accused irrevocably prove
the danger he represents given his serious propensity for crime and his willingness to kill
people in order to preserve what he thinks belongs to him. Whereas the accused committed
his crimes within an organized methodical framework, was aware of the seriousness and
consequences of his acts and sought to achieve these consequences, i.e. sabotaging cities,
performing arbitrary killings and wreaking havoc in the country. Therefore, the Court has no
choice in this case and pursuant to the articles of indictment and Article (28) of the Penal
Code but to punish the accused by the death penalty as worded in the dispositve portion of
the ruling.”
Judgement of the Tripoli Criminal Court against Dr. Saif Al-Islam Gadafi
in Case 630/2012, 28 July 2015, LBY-OTP-0062-0280 at 0439-0440
I. Introduction
1. The defence for Dr. Saif Al-Islam Gadafi (“Defence”) hereby challenge the
admissibility of this case pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome
inadmissible because Dr. Saif Al-Islam Gadafi (“Dr. Gadafi”) has already been
tried in Libya for the same conduct as alleged by the Prosecutor of the
trial by the Court is not permitted pursuant to Article 20(3) of the Statute which
provides that :
No person who has been tried by another court for conduct also proscribed under
article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the
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a. Were for the purpose of shielding the person concerned from criminal
with the norms of due process recognised by international law and were
November 2011 and 12 April 2016, Dr. Gadafi was detained at the Zintan Reform
(“GOL”). In 2014, Dr. Gadafi was tried together with 36 other former regime
officials, and, on 28 July 2015, he was convicted by the Tripoli Criminal Court 1
for substantially the same conduct as alleged in the proceedings before this
3. Neither of the exceptions stated in Article 20(3) apply in the present case. The
Libyan national proceedings were not for the purpose of shielding Dr. Gadafi
from crimes within the jurisdiction of the Court; no allegation of shielding was
made in earlier admissibility proceedings in this case and any such submission
would now be unsustainable because Dr. Gadafi was convicted and sentenced
by the Libyan court. Additionally, the national proceedings were not otherwise
intent to bring Dr. Gadafi to justice. Furthermore, there is nothing to suggest that
the proceedings were incapable of providing genuine justice (as the Pre-Trial
1
See Judgment of the Tripoli Criminal Court, Case No. 630/2012, 28 July 2015. A copy of the original
judgment in Arabic is provided in Confidential Annex A and registered as LBY-OTP-0051-0004. The Office
of the Prosecutor’s draft English translation of the judgment is provided in Confidential Annex B with
registration LBY-OTP-0062-0280. References to the Judgment will hereinafter be to the draft translation.
2
See Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, ICC-01/11-01/11-
466-Red (“Al-Senussi Admissibility Decision”), para. 167.
3
LBY-OTP-0062-0280 at 0439-0440.
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case).4
4. In light of all these matters, and as further argued below, the Defence submits
Application6 and a warrant of arrest for Dr. Gadafi.7 The Chamber concluded
dissidents;8
4
Al-Senussi Admissibility Decision; Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of
Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-
Senussi”, 24 July 2017, ICC-01/11-01/11-565 OA 6 (“Al-Senussi Appeals Judgment”).
5
ICC-01/11-4-Conf-Exp.
6
Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar
Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Sennusi”, ICC-01/11-01/11-1.
7
Warrant of Arrest for Saif Al-Islam Gaddafi, ICC-01/11-01/11-3 (and annexes thereto).
8
ICC-01/11-01/11-1, para. 41.
9
Id. at para. 65.
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iii. Dr. Gadafi was criminally responsible for the above crimes as an indirect
Throughout the relevant period, Dr. Gadafi was detained on the authority and
was at all material times under the control of the Government of Libya, as
Prosecutor, the battalion with custody over Dr. Gadafi.14 The control of the
Government of Libya over Dr. Gadafi and the ZRRI is evidenced by numerous
factors in Colonel Alatairi’s statement. These include, but are not limited to: (i)
on 21 November 2011, the Libyan Prosecutor, Abdul Majid Saad, authorised Dr.
10
Id. at para. 71.
11
Id. at para. 80.
12
Request to the Libyan Arab Jamahiriya for the arrest and surrender of Muammar Mohammed Abu Minyar
Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, ICC-01/11-01/11-5.
13
See, for instance, ICC-01/11-01/11-44-Conf-Anx1.
14
Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami
AL-’ATIRI, Commander of the Abu-Bakr al-Siddiq Battalion in Zintan, Libya, 26 April 2016, ICC-01/11-
01/11-624 para. 8.
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Gadafi’s detention;15 (ii) the ZRRI was designated a place of detention by the
Dr. Gadafi were issued by the Office of the General Prosecutor of Libya;17 (iv) the
Government of Libya controlled the medical treatment that Dr. Gadafi received
at the ZRRI;18 (v) the Government of Libya controlled the visitors that he was
permitted to see;19 (vi) the Government of Libya paid the salary of Colonel
Alatairi whilst he was instructed to detain Dr. Gadaafi and perform his other
Libya paid the salaries of the guards of the ZRRI who were detaining Dr. Gadafi
and working at the ZRRI;21 (viii) the Government of Libya supplied the uniform
for Colonel Alatairi as well as all those for the guards working at the ZRRI.22
9. On 1 May 2012, Libya filed a challenge to the admissibility of the present case
before the Court pursuant to Article 17(1)(a), on the basis that its national
judicial system was “actively investigating” Dr. Gadafi for the same crimes.23
10. Since he was not before the Court and had not instructed lawyers, Pre-Trial
Chamber I instructed the Office of Public Counsel for the Defence (“OPCD”) to
15
Witness Statement of Alajmi Ali Ahmed Alatairi (“Alatairi Statement”) (Annex C), para. 8 and Exhibit 1
thereto.
16
Alatairi Statement, para. 8, and Exhibits 1 to 5 thereto.
17
Alatairi Statement, para. 13, and Exhibit 8 thereto.
18
Alatairi Statement, para. 14, and Exhibits 9 to 12 thereto.
19
Alatairi Statement, paras. 20 – 23, and Exhibits 18 to 21 thereto.
20
Alatairi Statement, para. 33, and Exhibit 31 thereto.
21
Alatairi Statement, para. 33.
22
Ibid.
23
Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ICC-01/11-
01/11-130-Conf (hereafter “Libya’s Admissibility Challenge (Gadafi)”), para. 1.
24
Public Redacted Version of Decision Requesting Libya to file Observations Regarding the Arrest of Saif Al-
Islam Gaddafi, 6 December 2011, ICC-01/11-01/11-39-Red, p. 6.
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Dr. Gadafi’s behalf, OPCD filed a response opposing Libya’s application and
11. On 31 May 2013, the Pre-Trial Chamber found that the case was admissible.26
The basis for this decision was that, although a number of progressive steps had
been taken in the national investigation,27 the evidence did not allow the
Chamber to “discern the actual contours of the national case against Mr. Gaddafi such
that the scope of the domestic investigation could be said to cover the same case as that
12. In addition, considering Article 17(3), the Chamber also found that Libya was
national system “cannot yet be applied in full in areas or aspects relevant to the case”
relied on three factors: Libya’s ability to obtain Dr. Gadafi’s transfer to state
13. On 7 June 2013, Libya filed an appeal against that admissibility decision.31
2013, the Accusation Chamber in Libya held its initial hearing in the case against
25
Defence Response to the ‘Application on behalf of the Government of Libya pursuant to Article 19 of the ICC
Statute, ICC-01/11-01/11-190-Conf. A corrigendum was filed on 31 July 2012 (ICC-01/11-01/11-190-Conf-
Corr).
26
Decision on the admissibility of the case against Saif Al-Islam Gaddafi, ICC-01/11-01/11-344-Conf
(“Gaddafi Admissibility Decision”).
27
Id. at para. 132.
28
Id. at para. 135.
29
Id. at para. 205.
30
Id. at para. 215.
31
The Government of Libya’s Appeal against Pre-Trial Chamber I’s ‘Decision on the admissibility of the case
against Saif Al-Islam Gaddafi’, ICC-01/11-01/11-350.
32
See, for instance, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May
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15. On 23 September 2013, Libya sought permission to adduce new evidence in the
course of its appeal on admissibility in the case against Dr. Gadafi, in order to
address both the initial hearing that had taken place in Libya after the Pre-Trial
Chamber had rendered the impugned decision, as well as the substantial dossier
That evidence had not been presented to the PTC for consideration.
16. The Appeals Chamber rejected Libya’s request to file additional evidence,
emphasising that admissibility “must be determined on the basis of the facts as they
exist at the time of the proceedings concerning the admissibility challenge”.34 The
Appeals Chamber noted that if Libya wished the Court to consider new material,
admissibility challenge.35 Libya did not file a second admissibility challenge and
17. On 21 May 2014, more than a year after the Pre-Trial Chamber decision, the
Appeals Chamber issued its judgement rejecting Libya’s Appeal. In so doing, the
Appeals Chamber upheld the decision of the Pre-Trial Chamber that “although
certain investigative activity was taking place in Libya, ‘the evidence, “taken as a
whole, does not allow the Chamber to discern the actual contours of the national
case against Mr. Gaddafi such as the scope of the domestic investigation could
be said to cover the same case as that set out in the Warrant of Arrest issued by
2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, 21 May 2014, ICC-
01/11-01/11-547-Red OA 4 (“Gaddafi Admissibility Judgment”), para 37 (summarising the Government of
Libya’s submissions).
33
The Libyan Government’s further submissions in reply to the Prosecution and Gaddafi Responses to
‘Document in support of Libya’s Appeal against the ‘Decision on the admissibility of the case against Saif Al-
Islam Gaddafi’, ICC-01/11-01/11-454-Conf, paras. 4-11.
34
Gaddafi Admissibility Judgment, paras. 41, 44. See further, ICC-01/09-01/11-234 OA, para. 10.
35
Gaddafi Admissibility Judgment, para. 44.
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the Court’”.36 Since that conclusion was sufficient to dismiss the Appeal, the
18. On 11 October 2013, Pre-Trial Chamber I found that the case against Mr. Al-
Senussi was inadmissible.38 It held that the evidence submitted in support of that
application (in contrast to the more limited evidence submitted a year earlier, in
“concrete and progressive steps” had been taken in the national investigation in
the Court.40
19. It further held that Libya was not unwilling to genuinely carry out the
national proceedings were being conducted for the purpose of shielding Mr. Al-
Senussi;42 (ii) proceedings were not tainted by unjustified delay; 43 and (iii) the
investigations were not being conducted in a manner inconsistent with the intent
to bring Mr. Al-Senussi to justice.44 Further, it held that (iv) Libya was not unable
20. In relation to the considerations which had led to the opposite conclusion in
Libya’s admissibility challenge (Gadafi), the Pre-Trial Chamber held that: Mr. Al-
36
Id. at para. 143 (emphasis added by Appeals Chamber).
37
Id. at paras. 213-214.
38
Al-Senussi Admissibility Decision.
39
Id. at para. 297.
40
Id. at para. 167.
41
Id. at para. 293.
42
Id. at para. 290.
43
Id. at para. 291.
44
Id. at para. 292.
45
Id. at para. 310.
46
Id. at para. 308.
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that Libya was not unable to obtain testimony or evidence; 47 and considered that
“Libya is not unable to otherwise carry out the proceedings against Mr Al-Senussi due
21. The Pre-Trial Chamber in the Al-Senussi case was of the view that “the fact that
certain detention facilities are yet to be transferred under the authority of the
Ministry of Justice […] have a direct bearing on the investigation against Mr.
Gaddafi as they prevent Libya from obtaining the ‘necessary evidence and
testimony’ within the meaning of article 17(3) of the Statute”.49 If the available
evidence held by Libya50 had been put to the Pre-Trial Chamber in the Gaddafi
case, it would have found that the ZRRI had also been formally placed under the
control of the Government of Libya and that, in any event, it did not prevent
Gadafi.
22. Because all necessary and relevant information was not presented to the Pre-
Trial Chamber by the parties or by Libya, it seems, with respect, that the Pre-
wrongly drawing a distinction between the cases of Al Senussi and Gaddafi as far
as the issue of “control over the accused” is concerned. The main trial took place
within the Al Hadhba detention facility,51 where Mr. Al-Senussi and most of the
accused in Case 630/2012 were detained. In the same way that the Libyan
47
Id. at paras. 298-301.
48
Id. at para. 309.
49
Id. at para. 297.
50
See, e.g., Alatairi Statement (Annex C), and as outlined at supra para. 8.
51
See United Nations Support Mission in Libya and United Nations High Commissioner for Human Rights,
“Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), 21 February 2017,
available at: http://www.ohchr.org/Documents/Countries/LY/Trial37FormerMembersQadhafiRegime_EN.pdf
(“UNSMIL Report”), p. 2 (“The trial took place inside the Al-Hadhba compound. The compound is controlled
by an armed group that was opposed to the Qadhafi regime, creating an intimidating environment for
defendants and their families, as well as their lawyers. Access to the Court was controlled by prison staff who,
on a number of occasions, hindered entry for observers, media, and defendants’ relatives.”) A copy of the report
is provided in Annex D hereto.
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mandated Mr. Khaled Sherif to oversee security at Al Hadhba. Mr. Khaled Sherif
was a former leader of the “Libyan Islamic Fighting Group” and he remained in
charge of Al Hadhba detention facility during the trial although “no longer
distinction between the GOL’s control over Dr. Gadafi and Mr. Al-Senussi.
23. On 17 October 2013, the Defence for Abdullah Al-Senussi filed an appeal against
that decision.53 On 24 July 2014, the Appeals Chamber upheld the Pre-Trial
inadmissible.54 It upheld both the finding that Libya was prosecuting the same
case55 and the conclusions that Libya was not unable or unwilling to prosecute
the case.56
24. On 28 July 2015, Dr. Gadafi was convicted and sentenced by the Tripoli Court.
The Prosecutor has disclosed to the Defence a translation of the Judgment of the
Tripoli Court of Appeal which records that court’s verdict and reasoning
52
Id. at p. 21 (“In terms of the location, the trial was held at the Al-Hadhba compound in Tripoli, which had
been formerly the place of a police academy. The compound includes the Al-Hadhba prison, a high security
prison where the majority of defendants in Case 630/2012 were held. While the Al- Hadhba prison has
nominally been under the control of the Judicial Police under the Ministry of Justice since 2012, prison guards
and administration do not answer to the head of the Judicial Police but to Khaled Sherif, a Deputy Minister of
Defence until 2014 and a former leader of the Libyan Islamic Fighting Group. Members of this group opposed,
at times with the use of force, the Qadhafi regime in years prior to the 2011 uprising as well as during the
conflict, and are currently mostly members of an armed group called “National Guard”, which physically
controls the Al-Hadhba compound. During a meeting with UNSMIL in May 2014, Khaled Sherif confirmed that
he had a special role in overseeing the Al-Hadhba prison. He is still in control of the prison although no longer
undertaking official government functions.”).
53
Appeal on behalf of Abdullah Al-Senussi against Pre-Trial Chamber I’s ‘Decision on the admissibility of the
case against Abdullah Al-Senussi’, and request for suspensive effect, ICC-01/11-01/11-468-Red.
54
Al-Senussi Appeals Judgment.
55
Id. at para. 123.
56
Id. at paras. 262, 297.
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translation as Annex E). Article 1 of that Law provided that all Libyans who
committed offences during the period 15/02/2011 until the issuance of the law
should be eligible for a general amnesty and that received sentences and their
on the basis of that law was conditional and would no longer apply if the person
included in the general amnesty committed a ‘wilful’ felony within 5 years from
the date of when the proceedings of the relevant criminal case were
discontinued.
26. On or around 12 April 2016, having been imprisoned for a further nine months
after his conviction, Dr. Gadafi was released from prison in Zintan on the
authority and upon the instruction of the Government of Libya, pursuant to Law
6 of 2015.57 The effect of Law 6 of 2015, as it applied to Dr. Gadafi, was thus not
stricto sensu an “amnesty” (since he had already been convicted), but instead that
any further criminal proceedings against him in Libya were “dropped”, save
that, as provided by the law, they could be re-opened and the sentence imposed
27. On 5 May 2017, the power of attorney personally signed by Dr. Saif Al-Islam
Gadafi in favour of lead counsel in the present case was finally accepted by the
Registry of the Court.58 Since that time, the Defence sought and was eventually
granted access to the confidential case files in the case. After reviewing the same
that the present case should be declared inadmissible before the Court.
57
See Alatairi Statement (Annex C), paras. 30-31 and Exhibits 25 to 29 thereto.
58
Registration of the appointment of Mr. Karim Khan as Counsel and Ms Shyamala Alagendra as Associate
Counsel for Mr. Saif Al-Islam Gaddafi, ICC-01/11-01/11-635, paras. 1 and 5.
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[…]
Determined to put an end to impunity for the perpetrators of these crimes and thus
[…]
authorizing any State Party to intervene in an armed conflict or in the internal affairs
of any State,
[…]
Emphasizing that the International Criminal Court established under this Statute
[…]
29. Article 1 of the Statute also confirms that the Court “shall be complementary to
Issues of Admissibility
(1) Having regard to paragraph 10 of the Preamble and article 1, the Court shall
b. […]
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c. The person concerned has already been tried for conduct which is the
subject of the complaint, and a trial by the Court is not permitted under
d. […].
(1) […]
or
(3) […]
(4) The admissibility of a case or the jurisdiction of the Court may be challenged only
once by any person or State referred to in paragraph 2. The challenge shall take
the Court may grant leave for a challenge to be brought more than once or at a
time later than the commencement of the trial. Challenges to the admissibility of a
case, at the commencement of a trial, or subsequently with the leave of the Court,
(5) A State referred to in paragraph 2(b) and (c) shall make a challenge at the earliest
opportunity.
(6) Prior to the confirmation of the charges, challenges to the admissibility of a case or
Chamber. […]
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Ne bis in idem
1. […]
2. […]
3. No person who has been tried by another court for conduct also proscribed under
article 6, 7 or 8 shall be tried by the Court with respect to the same conduct
a. Were for the purpose of shielding the person concerned from criminal
with the norms of due process recognised by international law and were
33. Rule 58 (Proceedings under article 19) provides in relevant part that:-
1. A request or application made under article 19 shall be in writing and contain the
34. The effect of Article 20(3), read together with Article 17(1)(c), is that the Court
following matters:-
i. that Dr. Gadafi has already been tried by the Libyan national courts (see
paragraphs 40 – 49 below);
ii. that the national trial was with respect “to the same conduct” as that
iii. national proceedings were not for the purpose of shielding within the
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101 below).
35. Dr. Gadafi has standing to challenge the admissibility of the case against him
pursuant to Article 19(2)(a) and brings this challenge within the procedural
conditions defined by Article 19(4). Article 19(2)(a) specifies that “an accused or a
person for whom a warrant of arrest or a summons to appear has been issued under
Article 58” are among the parties who may challenge the admissibility of a case.
Dr. Gadafi is a person for whom a warrant of arrest has been issued under
within the time limit and procedural requirements specified by Article 19(4).
36. It is not a condition of making an admissibility challenge that Dr. Gadafi must
contained in Article 19, and commentators have taken the view that “the person
sought for surrender has a right to challenge the admissibility before the Court
under article 19(2)(a) as soon as a warrant for arrest has been issued”. 60
Moreover, imposing any such requirement would infringe the very right that
59
Warrant of Arrest for Saif Al-Islam Gaddafi, 27 June 2011, ICC-01/11-01/11-3.
60
Claus Kreß and Kimberley Prost, “Article 89: surrender of persons to the Court”, the Rome Statute of the
International Criminal Court: a commentary (3rd edition 2016) eds O. Triffterer, K. Ambos, p. 2054.
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arrest “has been issued” under Article 58, not that the person has
warrant;
ii. Any attempt to read words into Article 19, in order to require a relevant
admissibility challenge, would undermine the very right that Article 20(3)
is designed to protect. The Court must interpret and apply the Statute,
accordance with the law […]“. The right not to be tried twice is also
61
Article 21(3) of the Statute. See further ICC-01/04-01/06-772 (OA4), 14 December 2006, para. 37.
62
Article 4 of Protocol 7 to the European Convention on Human Rights; Article 50 of the Charter of
Fundamental Rights of the European Union; Article 8(4) of the American Convention on Human Rights; Article
N(8) of the Principles and Guidelines on the right to a Fair Trial and Legal Assistance in Africa; Article 16 of
the Arab Charter on Human Rights; and the Fifth Amendment to the Constitution of the United States of
America.
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fundamental right that no-one should be tried a second time. Dr. Gadafi
for the same conduct alleged in the present case before the Court. To
that he has already been tried for the same conduct, would necessarily
same conduct. That would infringe his right not to be punished twice for
the same conduct, which is exactly the right which Article 20(3) was
37. The Appeals Chamber has not directly addressed the burden of proof applicable
19(2)(a). The Defence submits that the proper standard is that identified by Trial
Chamber III, namely, on the balance of probabilities. This is based upon the
apply this standard “when the burden lies upon the defence in criminal
proceedings”.63 The Defence respectfully agrees with Trial Chamber III’s holding
that this burden is limited to the Defence establishing the relevant facts
underpinning the application, whereas the overall duty falls on the Chamber to
to Articles 17(1)(c) and 20, the Defence submit that the following approach
63
Prosecutor v. Bemba, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, ICC-
01/05-01/08-802, para. 203.
64
Id. at para. 204.
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applies. First, the accused or person must adduce relevant facts demonstrating
that he or she “has been tried by another court”. In this regard, and pursuant to
the holding of the Appeals Chamber that the ICC was not established as a
human rights court,65 the accused or person need only adduce facts
demonstrating that the case involved substantially the same conduct as the case
39. Once the accused or person has met this evidential burden with respect to these
two primary elements under the chapeau of Article 20(3), the Defence submits
that the accused or person need only establish on a prima facie basis that the
exceptions under Article 20(3)(a) and (b) do not apply. As regards the exception
under Article 20(3)(a), it should be sufficient for the accused or person to show
that there is no reasonable indication that the purpose of the trial was to shield
the accused or person from criminal responsibility, rather than a positive burden
to ‘disprove’ this possibility. With respect to the exception under Article 20(3)(b),
and as submitted above, the main consideration for the Chamber is “whether
something that can recognizably be described as a trial has occurred”. Once this
evidential burden is met by the Defence, the burden of proof shifts to any other
party or participant that submits that the exception under Article 20(3)(b) does
apply. This is in line with the Pre-Trial Chamber’s finding in the Al-Senussi
65
Al-Senussi Appeals Judgment, para. 219.
66
F. Mégret & M.G. Samson, "Holding the Line on Complementarity in Libya: the Case for Tolerating Flawed
Domestic Trials" 11(3) Journal of International Criminal Law (2013), p. 586, quoted with approval in Al-Senussi
Appeals Judgment, fn. 458.
67
Al-Senussi Admissibility Judgment, para. 167.
68
Al-Senussi Admissibility Decision, para. 208.
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a. Dr. Gadafi has already been tried by the Libyan national Courts
40. This case is inadmissible because Dr. Gadafi has already been tried in Libya.
of the case against Dr. Gadafi has been entered by a competent Court.
committing the case against Dr. Gadafi and others to the trial court.70 The
Government of Libya passed Law No. 7 of 2014, amending Article 243 of the
Code of Criminal Procedure of Libya, thereby permitting Dr. Gadafi, held in the
Reform and Rehabilitation Institution in Zintan, and the eight accused held in
of Libya, Dr. Gadafi was duly taken to the Zintan Court by officials of the Zintan
several occasions.72 On other occasions, when the video-link was not operational
69
Dr. Mark S. Ellis, “Trial of the Libyan regime: An investigation into international fair trial standards”,
International Bar Association, November 2015, p. 31 (available at:
https://www.ibanet.org/Document/Default.aspx?DocumentUid=abcf9bed-7a28-4b66-a923-a6c1c487c845) A
copy of the report is provided in public Annex F hereto.
70
This was received in Zintan and seen by Dr. Gadafi in June 2014. See Alatairi Statement (Annex C), para. 15.
71
See Alatairi Statement (Annex C), para. 16; Application for Leave to Reply & Consolidated Reply on Behalf
of the Libyan Government to Responses to the “Libyan Application for Extension of Time Related to Pre-Trial
Chamber I’s ‘Decision requesting Libya to provide submissions on the status of the implementation of its
outstanding duties to cooperate with the Court’”, 13 June 2014, ICC-01/11-01/11-557-Red, para. 29; Amended
Libyan Code of Criminal Procedure (attached as Annex G hereto), Article 243; UNSMIL Report (Annex D), p.
4 (“Despite attempts to facilitate attendance at the trial for some defendants through video-link, the right to be
tried in one’s presence was undermined with at least nine defendants, held in Misrata and Mitiga, missing
hearings of the trial, and Saif al-Islam Qadhafi, held in Zintan, being connected by video-link for only four out
of 25 trial sessions.”).
72
See LBY-OTP-0062-0280, p. 0293 (“The Public Prosecutor requested the trial be postponed in order to link
Tripoli’s courtroom to Zintan’s courtroom so that Defendant No. 1 [Dr. Gadafi] may be prosecuted via CCTV
[…].”); p. 0294-0295 (“The Public Prosecution requested the Court to enforce Article 1 of Law No. 7 of 2014
AD, which provides that the accused may be tried via CCTV if he cannot be brought before the Court. The
Public Prosecutor also requested that the Article be enforced in the case of Defendant No. 1, who is detained at
the Reform and Rehabilitation Institute in Zintan, and Defendants Nos. 4, 23, 24, 25, 26, 27, 28 and 29, who are
detained at the Reform and Rehabilitation Institute in Misratah. He said that the courtroom in Zintan was linked
to the one in Misratah and submitted a copy of Law No. 7 of 2014 AD on the amendment of the Code of
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or Dr. Gadafi did not otherwise appear by video-link, the record discloses that
hearings were attended by lawyers on his behalf or substantive issues were not
discussed.73 The Defence observes that several sessions not attended by Dr.
Gadafi or his lawyer, Mr. Hanashi, did not directly concern him. During those
sessions the lawyers for the other accused persons presented evidence and made
42. As set out above, the Judgment convicting Dr. Gadafi on the merits was
pronounced by the Tripoli Court of Appeal on 28 July 2015. It is, therefore, clear
43. Article 20(3) applies where the relevant person “has been tried by another
court”. The language of the Statute must be construed, first, by reference to the
ordinary meaning of the terms used in their context and in the light of the object
and purpose of the Statute.75 The ordinary meaning of “has been tried by another
court” is that court proceedings in relation to the relevant person have been
or acquitting that person. As set out above, that is the position here.
Criminal Procedure.”); p. 0296 (“[T]he Court decided to postpone the hearing of the case until the session of
27/4/2014 AD so that Defendants Nos. 1, 4, 6, 26, 27 28 and 29 accused may be tried via CCTV in execution of
Article 2 of Law No. 7 of 2014 AD regarding the amendment of certain provisions of the Code of Criminal
Procedure.”); p. 0296 (“At the above-mentioned session [27 April 2014], Defendant No. 1 was tried via CCTV
without counsel and said that God is his defender.”); p. 0298 (“Defendant No. 1 attended the above-mentioned
session [11 May 2014] via CCTV without counsel.”); p. 299 (“Defendant No. 1 attended the above-mentioned
session [25 May 2014] via CCTV without counsel.”); p. 300 (“Defendant No. 1 attended the above-mentioned
session [22 June 2014] via CCTV along with Attorney Abd al-Salam al-Hanashi, member of the Public
Attorney Department.”).
73
See LBY-OTP-0062-0280, pp. 0302 (2 October 2014 hearing – video link not functioning and no evidence
presented or substantive issues discussed); 0316 (14 December 2014 hearing – Dr. Gadafi represented by
counsel); 0309 (11 January 2015 hearing – Dr. Gadafi represented by counsel); 0312 (25 January 2015 hearing –
Dr. Gadafi represented by counsel); 0323 (8 March 2015 hearing – Dr. Gadafi represented by counsel); 0334 (12
April 2015 hearing – Dr. Gadafi represented by counsel); 0353 (3 May 2015 hearing – Dr. Gadafi represented
by counsel).
74
See LBY-OTP-0062-0280, pp. 0303-0306 (2 November 2014 hearing); 0306-0309 (28 November 2014
hearing); 0319-0321 (8 February 2015 hearing); 0331-0334 (30 March 2015 hearing).
75
See Vienna Convention on the Law of Treaties (1969), Article 31(1).
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44. There is no basis in the Statute, or in the facts of this case, for any artificial
attempt to displace the obvious conclusion that Dr. Gadafi has been tried. Dr.
Gadafi does not have to show that he has exhausted all appellate proceedings or
other remedies under Libyan law. The term “has been tried” means simply that
the trial proceedings have concluded with a verdict on the merits. First, the
language of Article 20(3) of the Statute should be contrasted, for instance, with
Article 14(7) of the International Covenant on Civil and Political Rights which
(emphasis added). If the drafters of the Statute intended to limit the application
of Article 20 to the situation where all appeals have been exhausted and the
45. Second, consistent with this interpretation of Article 20(3), Trial Chamber III has
held that Article 17(1)(c) was inapplicable where the national decision relied on
was “not in any sense a decision on the merits of the case”.76 Trial Chamber III
thus correctly identified that the defining characteristic of a concluded trial is the
existence of a decision on the merits. The same conclusion was reached by a trial
Though Trial Chamber III added, in the same paragraph, that the national
decision “did not result in a final decision or acquittal”, that is not inconsistent
with the interpretation advanced by the Defence. The primary reason that
Article 17(1)(c) did not apply in that case was that the relevant national decision
determination on the merits.78 The additional reason that there was no final
76
ICC-01/05-01/08-802, para. 248.
77
Prosecutor v Tadić, IT-94-1-T, Decision on the Defence Motion on the principle of non bis in idem, 14
November 1995, para. 24 (determining that the application of the principle of ne bis in idem requires a
“judgment on the merits”).
78
ICC-01/05-01/08-802, para. 248.
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decision or acquittal only arose on the unusual facts of that case because the
46. Third, the Defence submits that the structure of Article 17 suggests that all that is
court. Article 17(1)(a) applies where a case “is being investigated or prosecuted
State […] which has decided not to prosecute”. Article 17(1)(c) applies where
“the person concerned has already been tried”. The three subsections thus each
between Article 17(1)(a) and Article 17(1)(c) is that Article 17(1)(a) addresses
national trial proceedings prior to the conclusion of trial, while Article 17(1)(c)
between these subsections; it could not be argued that Article 17(1)(a) continues
concerned with the situation where a national trial has taken place and is the
only subsection which is capable of applying after a judgment on the merits has
been entered.
47. Finally, the Defence note that the Judgment (Annexes A and B) appears on its
Gadafi.80 The Government of Libya has previously submitted that any person
law in absentia trials are not permitted in circumstances where the defendant is
79
Id. at paras. 222 and 228.
80
LBY-OTP-0062-0280, p. 0625.
81
ICC-01/11-01/11-612, paras. 6-8 (relying on Article 358 of the Libyan Code of Criminal Procedure).
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present on the territory of Libya and his location is known to the authorities.82
The Pre-Trial Chamber noted this submission from Libya in the Admissibility
Decision (Gaddafi) and found that “[a]s a result, without the transfer of
Mr Gaddafi into the control of the central authorities, the trial cannot take place.”83 In
view of the above submissions from the Libyan government and the Pre-Trial
Chamber’s finding, it is not at all clear to the Defence that the Libyan Court was
correct to regard the trial of Dr. Gadafi as a trial in absentia. First, per the Libyan
government’s submission, a trial in absentia cannot take place when the location
of the accused is known, as was the case with Mr. Gadafi. Second, treating it as a
were made specifically to allow Dr. Gadafi to attend the trial by video-link.84 As
explained by Colonel Alatairi, the provision for Dr. Gadafi to attend trial by
hearings when Dr. Gadafi did not attend were attended by lawyers on his
behalf.86 Third, the Judgment suggests that the reason a Judgment in absentia
was entered was that Dr. Gadafi’s “non-appearance before the Court was the
result of his own free will and his belief that his jailors do not have jurisdiction
was under the control of the Government of Libya, who could have produced
82
Hearing of 10 October 2012, ICC-01/11-01/11-T-3-Red-ENG, p. 62, lines 10-14.
83
Gaddafi Admissibility Decision, para. 208.
84
See, e.g., LBY-OTP-0062-0280, pp. 0294-0295 (“The Public Prosecution requested the Court to enforce
Article 1 of Law No. 7 of 2014 AD, which provides that the accused may be tried via CCTV if he cannot be
brought before the Court. The Public Prosecutor also requested that the Article be enforced in the case of
Defendant No. 1, who is detained at the Reform and Rehabilitation Institute in Zintan […]”).
85
Alatairi Statement (Annex C), paras. 16-18.
86
See LBY-OTP-0062-0280, pp. 0316 (14 December 2014 hearing); 0309 (11 January 2015 hearing); 0312 (25
January 2015 hearing); 0323 (8 March 2015 hearing); 0334 (12 April 2015 hearing); 0353 (3 May 2015
hearing).
87
LBY-OTP-0062-0280, p. 0427.
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from justice”. There appears therefore to be no proper foundation for the finding
that Judgment in absentia should be issued. The correct position is therefore that
this was not a trial in absentia; it was a trial which Dr. Gadafi attended by video-
link in accordance with the requirements of national law at the time. The
pursuant to which the Pre-Trial Chamber is entitled to and should reject the
issued “in absentia”, and instead accept that the verdict against him was “in
48. In any event, the question whether the trial was in absentia or not has become
academic. The effect of Law No. 6 of 2015 is that any further criminal
effectively suspended. The result is that even if Dr. Gadafi had a hypothetical
right to ask for a re-trial because the judgment was pronounced in absentia, Law
No. 6 of 2015 takes away that possibility and so renders the existing Judgment
final (subject only to the possible re-opening of proceedings should Dr. Gadafi
commit a further offence within the relevant five year period). It cannot be right
that this case remains admissible at this Court because there remains a
88
See Amended Libyan Code of Criminal Procedure (Annex G), Article 243.
89
Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June
2010 entitled “Decision on the Admissibility and Abuse of Process Challenges”, 23 October 2010, ICC-01/05-
01/08-962 OA 3, para. 66 (“In the view of the Appeals Chamber, when a Trial Chamber must determine the
status of domestic judicial proceedings, it should accept prima facie the validity and effect of the decisions of
domestic courts, unless presented with compelling evidence indicating otherwise.”)
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position; the current position is that the national proceedings against Dr. Gadafi
49. The inescapable truth at the heart of this application is that in accordance with
national criminal procedures over a period of at least 3 years the case against Dr.
conducted over more than one year, in which evidence was introduced and a
verdict of conviction was delivered by the Libyan judges adjudicating the case.
tried.
50. The Appeals Chambers in the Gadafi and Al-Senussi Admissibility Decisions have
Article 17(1)(a) – and the present challenge is brought under Article 17(1)(c) –
the Defence submits that same test should apply here. First, both Articles
17(1)(a) and 17(1)(c) relate to situations where the Court shall determine that a
of the Statute. The Appeals Chamber itself has used Articles 17(1)(c) and 20(3) as
to assume that they were intended to have the same meaning”. 90 Second,
applying different tests to Article 17(1)(c) and Article 17(1)(a), would potentially
If a national case concerned substantially the same conduct as a case before the
Court, it cannot be right that the case would be inadmissible during the national
prosecution pursuant to Article 17(1)(a) but become admissible after the national
90
Al-Senussi Appeals Judgment, para 222. See further ICC-01/09-01/11-307 OA, paras. 37, 40.
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trial has concluded because Article 17(1)(c) imposes a more stringent test. Third,
the test in relation to the “same conduct” defined by the Appeals Chamber in
consistent with the test propounded by the Grand Chamber of the European
whether the right not to be tried twice for the same offence has been infringed.91
51. The Defence submits that the case tried in Libya against Dr. Gadafi related to the
same conduct. The Appeals Chamber has consistently defined the parameters of
a ‘case’ for the purpose of admissibility by reference to the ‘same individual’ and
‘substantially the same conduct’. The test of substantially the same conduct
requires the Chamber to consider both the alleged mode of liability and the
proceedings sufficiently mirror the case before the Court. The assessment of the
subject matter of domestic proceedings must focus on the alleged conduct and
‘ordinary crimes’, to the extent that the case covers the same conduct, shall be
considered sufficient.” 92
52. The Appeals Chamber confirmed that the parameters of a case are defined by
“the suspect under investigation and the conduct that gives rise to criminal
“conduct” means both “that of the suspect, Mr. Gaddafi, and that described in the
91
Zolotukhin v Russia, App No. 14939/03, Grand Chamber Judgment, 10 February 2009.
92
Gaddafi Admissibility Decision, para. 77; Al-Senussi Admissibility Decision, para. 66(iv).
93
Gaddafi Admissibility Judgment, para. 61.
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incidents under investigation”.94 As a result, both the mode of liability and the
historical events in the course of which crimes were allegedly committed are
relevant.
53. In the course of assessing the evidence on that occasion, the Appeals Chamber
emphasised that “the exact scope of an incident cannot be determined in the abstract.
What is required is an analysis of all the circumstances of a case, including the context of
the crimes and the overall allegations against the suspect”.95 There is no “hard and fast
investigation and the case before the Court.96 Rather, what is required is a
“judicial assessment of whether the case that the State is investigating sufficiently
mirrors the one that the Prosecutor is investigating”.97 That assessment must
compare “the underlying incidents under investigation both by the Prosecutor and the
State, alongside the conduct of the suspect”.98 Those legal findings were
54. The stated position of the ICC Prosecutor, from its 5 June 2012 Response to the
Article 19 Challenge submitted by Libya (and not varied to date), has been that
55. The ICC Prosecutor further conceded in the 5 June 2012 Response that:
i. “the Libyan authorities are investigating Saif Al-Islam for his involvement
94
Id. at para. 62.
95
Ibid.
96
Id. at para. 71.
97
Id. at para. 73.
98
Ibid.
99
Al-Senussi Appeals Judgment, paras. 99-110.
100
Prosecution response to Application on behalf of the Government of Libya pursuant to Article 19 of the ICC
Statute, 5 June 2012, ICC-01/11-01/11-167-Red, para. 2.
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attacks against civilians in Libya, and for specific incidents that occurred
ii. “This is the first time that a State has submitted an admissibility challenge
iii. “There is no question that the national authorities are investigating the
same person before the court, namely Saif Al-Islam Gaddafi. Likewise, the
(i) The Evidence Demonstrates that Dr. Gadafi was tried for the same conduct
56. The Trial Judgment in the Libyan proceedings makes it clear that, as set out
below and in confidential Annex H, Dr. Gadafi was tried and convicted, inter
facilitating the commission of crimes including the murder and killing of civilian
forces and security forces. The Libyan proceedings thus mirror the case
57. In assessing whether Dr. Gadafi was tried for the same conduct, the Defence
submits that the various concessions by the ICC Prosecutor that Dr. Gadafi was
being investigated by the Libyan national authorities for the same conduct as
101
Ibid.
102
Id. at para. 4.
103
Id. at para. 35 (emphasis added).
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application.
58. As to mode of liability, the Defence notes that in its Article 58 Decision, the Pre-
supporting the design of the plan, ensuring the implementation of the plan,
59. The Defence notes that, in assessing Libya’s admissibility challenge (Gaddafi), the
conduct”.107 It therefore concluded that “it would not be appropriate to expect Libya’s
investigation to cover exactly the same acts of murder and persecution” but instead
that the issue is whether the domestic investigation “addresses the same conduct
[…] namely that: Mr. Gaddafi used his control over relevant parts of the Libyan State
apparatus and Security Forces to deter and quell, by any means, including the use of
lethal force, the demonstrations of civilians, which started in February 2011 against
Muammar Gaddafi’s regime in particular, that Mr Gaddafi activated the Security Forces
under his control to kill and persecute hundreds of civilian demonstrators or alleged
Misrata, Tripoli and other neighbouring cities, from 15 February 2011 to at least 28
February 2011”.108
104
Al-Senussi Admissibility Decision, para. 68.
105
ICC-01/11-01/11-1, para. 71.
106
Id. at para. 80.
107
Al-Senussi Admissibility Decision, para. 82.
108
Id. at para. 83.
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60. A review of the evidence led at trial, and as detailed in the Trial Judgement,
establishes that the Libyan proceedings addressed the same conduct as alleged
in the Article 58 warrant. In Case No. 630/12, the Libyan Prosecutor, inter alia,
charged Dr. Gadafi for his alleged role in killings and other criminal acts against
those “rebelling against the regime” and “whoever was opposed to [Dr.
Gadafi’s] father” starting from 15 February 2011.109 He was charged for his
Bengahzi,110 Tripoli111 and Misrata.112 Dr. Gadafi was also charged for his role in
Libyans from from the opposition and cities rebelling against the regime” 113. The
Libyan Prosecutor alleged that Dr. Gadafi provided financial support and
equipment to public forces to commit the crimes charged. He was charged for
battalions.115 It was further alleged that Dr. Gadafi established armed tribal
groups, equipped them with various weapons and materials and provided them
with logistic support.116 The Libyan Prosecutor also charged Dr. Gadafi for
instigating “the arbitrary bombing of cities rebelling against the regime” 117 and
for inciting hatred and civil war through his speeches which were aired on
Libyan satellites.118 The Libyan proceedings thus mirrored the case investigated
61. The Libyan Prosecutor presented evidence concerning the killing and injuring of
109
LBY-OTP-0062-0280, p. 0284.
110
LBY-OTP-0062-0280, pp. 0287-0288.
111
LBY-OTP-0062-0280, p. 0287.
112
LBY-OTP-0062-0280, p. 0286.
113
LBY-OTP-0062-0280, p. 0290.
114
LBY-OTP-0062-0280, p. 0284.
115
LBY-OTP-0062-0280, pp. 0365-0366.
116
LBY-OTP-0062-0280, p. 0284.
117
LBY-OTP-0062-0280, p. 0285.
118
Ibid.
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those who were against the Gadafi regime in several locations including in Al
Libyan proceedings thus covered the same geographic locations as the case
62. In convicting Dr. Gadafi, the Tripoli Court found inter alia that:
i. “he provided financial support to Gaddafi’s battalions that killed the Libyan
people”;123
ii. he “brought in [and] equipped […] mercenaries and dispatched them to the battle
fronts in Misratah and the Western Mountains in order to fight the Libyan people
iii. “testimonies of the witnesses and the confessions of the accused prove that he was
iv. “the accused knew that providing financial support to the armed groups and
African mercenaries allows these forces to pursue their brutal war against the
Libyans, which happened in fact, as many cities were ruined and people were
killed because of these forces that were supplied with funds and ammunition by
the accused”;126
mercenaries entered the battle fronts in Misratah and the Western Mountains and
fought the residents of these areas, committing wide-spread killings and wreaking
119
LBY-OTP-0062-0280, pp. 0362, 0381, 0402.
120
LBY-OTP-0062-0280, pp. 0284-0285, 0287-0288.
121
LBY-OTP-0062-0280, pp. 0403, 0406, 0392-0393.
122
LBY-OTP-0062-0280, pp. 0386.
123
LBY-OTP-0062-0280, p. 0427.
124
LBY-OTP-0062-0280, pp. 0428-0429.
125
LBY-OTP-0062-0280, p. 0428.
126
LBY-OTP-0062-0280, p. 0428.
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havoc”;127
vi. “the [] evidence prove that the accused committed crimes of sabotage, killing,
instigating civil war and dismantling national unity. Whereas the accused knows
full well that inciting the residents of the regions supporting his father’s regime to
because such acts undermine civil peace, wreak havoc in the country and lead to
killings. Whereas the accused has undisputedly revived old conflicts and grudges
between the people and created new rivalries between the residents of the Libyan
cities and regions, given the atrocities committed by the volunteers under his
funds, sabotage and house torching, all of which targeted the residents of rebel
cities.128
vii. “Whereas the fact that the accused issued instructions to dispatch boats and
speedboats after supplying them with weapons in order to intercept aid vessels
heading towards the besieged cities, such as Misratah and Benghazi, during the
deliberately cut off food and medication to the residents of these cities as a way of
revenge and punishment. Whereas the accused knew that his acts would
necessarily entail arbitrary killings and havoc in the besieged cities. Therefore, this
viii. “he incited the arbitrary shelling of rebel cities, is proven against the accused
based on the testimony of (al-Hadi Ambirish) who said before the Public
Prosecution that Sayf al-Islam used to come to the Security Room and instruct
them to control the country; he also instructed his brother Khamis to control al-
Zawiyah and was monitoring the operations. The charge is proven against the
127
LBY-OTP-0062-0280, p. 0429.
128
LBY-OTP-0062-0280, p. 0430.
129
LBY-OTP-0062-0280, p. 0431.
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accused based on the statements of Defendant No. 4, Mansur Daw Ibrahim, who
said that the accused Sayf al-Islam used to attend the meetings of the Higher
Security Committee and issue instructions to combat units. The charge is also
proven against the accused based on the testimony of the witness Nasir al-
Hassuni, who told the Public Prosecution that the accused Sayf al-Islam was
ix. “that he played an inciting role and gave instructions and orders to the military
units and armed groups that were fighting the Libyan people in al-Brigah, the
Western Mountains, Misratah and al-Zawiyah. Whereas all these regions were
indisputably besieged and bombed with all types of heavy weapons, such as tanks,
Grad rocket launchers, rocket launchers and mortar shells, which destroyed the
infrastructure of the cities and killed and displaced its civilian unarmed residents.
Whereas the accused knows that besieging inhabited cities and inciting their
bombing will lead to the arbitrary killing of people and the sabotage of cities.
Whereas the accused committed this act for political reasons in order to take
revenge on the residents of these cities because they defected from the regime. This
xi. “the accused, despite knowing all these facts, incited others and gave them explicit
instructions to counter, crush and open fire on the protesters. Whereas such
incitement and orders led to killing hundreds of unarmed protesters who took to
the streets demanding freedom and good governance, which are legitimate and
deliberate killing are established against the accused with all their evidence and
130
LBY-OTP-0062-0280, p. 0431.
131
LBY-OTP-0062-0280, pp. 0431-0432.
132
LBY-OTP-0062-0280, p. 0433.
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xii. “the charge of incitement, contribution and agreement to kill the protesters was
brought against the accused since he mobilized armed groups from Tarhunah,
Bani Walid, Abu Salim and Sirte, supplied them with weapons and ordered them
to kill whoever opposes his father’s regime. This charge is proven against the
accused;134
xiii. “all these testimonies prove that the accused mobilized groups of young men
belonging to certain regions and tribes, armed and incited them to kill the people
who oppose his father’s regime. He also instructed his aides to kill the detained
persons and leave their corpses strewn by the side of the road”;135
xiv. “due to the incitement of the accused and his orders, the groups that he had
xv. “the accused committed a large number of serious crimes, since he ordered and
incited the killing of the protesters, mobilized armed groups to that end and
supplied them with weapons, provided financial and material support to the armed
groups that were fighting the people, brought African mercenaries to fight his
compatriots, ordered that cities be besieged and arbitrarily bombed with heavy
weapons and incited tribal dissension. He also ordered that sea ports be besieged,
incited rape in the besieged cities and approved such policy, ordered that civilian
aimed to undermine national security, wreak havoc and exact revenge on the
Libyan people who defected from the regime, which the accused thought would be
delegated to him after his father since he told Defendant No. 4 ‘This seat is mine’”;
137
xvi. “Whereas it is an undisputable fact that the volunteers’ legions, since they are
133
LBY-OTP-0062-0280, pp. 0435-0436.
134
LBY-OTP-0062-0280, p. 0436.
135
LBY-OTP-0062-0280, p. 0437.
136
LBY-OTP-0062-0280, p. 0437.
137
LBY-OTP-0062-0280, pp. 0439-0440.
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undisciplined, oblivious to the laws of war and driven by fierce tribal grudges and
kidnapping, rape, looting, house torching and money theft as was the case in al-
Zawiyah, Zuwarah and Misratah. Whereas these acts and crimes were the direct
result of the behavior of the accused and his contribution to the formation of these
legions. Therefore, the accused committed the crimes of sabotage, arbitrary killing,
dismantling national unity and inciting civil war attributed to him, which
requires him to be convicted. Whereas the sabotage and arbitrary killing charge
brought against the accused since he provided financial support to the armed
63. These core findings show unequivocally that Dr. Gadafi was tried and convicted
not used in the Libyan Trial Judgement, the Defence recalls that the legal
and the killing of civilian demonstrators140 and the arrest, detention and torture
above core findings demonstrate that the substance of the charge of persecution,
138
LBY-OTP-0062-0280, pp. 0444-0445.
139
Gaddafi Admissibility Decision, para. 77; Al-Senussi Admissibility Decision, para. 66(iv).
140
Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar
Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Sennusi”, ICC-01/11-01/11-1, paras. 49-64.
141
Id. at paras. 42-48.
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chart showing the substantial correlation and material overlap between the case
against Dr. Gadafi before this Court and in Case No. 630/2012 before the Tripoli
court, as detailed in its judgement delivered on 28 July 2015. For all these
reasons, the Defence submits that it has been established that Libya prosecuted
(ii) The Pre-Trial Chamber is not bound by its conclusion on Libya’s Challenge
to Admissibility
must be determined based on the facts as they exist at the time of the
66. The evidence relied upon in this application is fundamentally different from that
relied upon by the Government of Libya when it filed its admissibility challenge
in 2012. Since that time, the Libyan investigation of the case against Dr. Gadafi
has concluded, the domestic trial of Dr. Gadafi has opened and closed, and a
142
ICC-01/04-01/07-1497, para. 56; ICC-01/11-01/11-347, paras. 41 and 44; ICC-01/09-01/11-234, para 10.
143
ICC-01/04-01/07-1497, para. 56.
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67. Article 20(3)(a) provides a limited exception from the general rule of ne bis in
idem, where the national proceedings “were for the purpose of shielding the
person concerned from criminal responsibility”. This exception does not apply to
this case. First, the Statute expressly limits the Court’s consideration to “the
proceedings in the other Court” with the result that the Court is not permitted to
Second, the exception only applies when the national proceedings, viewed as a
whole, were “for the purpose” of shielding. That high threshold cannot be
crossed on these facts. Even if the Court considers that Law No. 6 of 2015 is
which arose from that national provision is on its own insufficient to justify the
68. No informed observer looking at the pre-trial and trial proceedings in Libya
from 2011 – 2015 could possibly conclude that those proceedings were for the
Dr. Gadafi was tried. At the end of that trial, he was convicted. A sentence was
any contention that this trial process leading to conviction and sentence was “for
(i) The Court’s consideration is limited to whether national court proceedings were
69. Any executive decision made by Libya, as a sovereign State, after the trial
court”. Court proceedings begin with an investigation and end with a verdict.
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For the reasons set out below, the language and drafting of the Statute itself,
legal dictionaries and other analogous ICC decisions all suggest that the word
after the end of the judicial proceedings. The Pre-Trial Chamber should therefore
determine whether the proceedings were for the purpose of shielding without
70. First, the ordinary and natural meaning of the text of Article 20(3) itself shows
that the term “proceedings” is limited to judicial proceedings. Article 20(3) refers
form part of proceedings in court because they are not judicial acts. Moreover,
the use of the words “in the other court” as opposed to a more expansive phrase
such as ‘the national process as a whole’ suggests that the section only applies to
proceedings in court and does not apply to any subsequent executive action in
relation to a case.
71. Second, that interpretation is confirmed by the commentaries on the Statute. The
Triffterer commentary notes that “court procedures usually end with a judgment
and the determination of the sentence in cases of conviction”. 144 Similarly, both
Holmes and Van den Wyngaert note that the drafting of Article 20(3)(a) appears
144
Immi Tallgren and Reisinger Coacini, “Article 20: Ne bis in idem”, the Rome Statute of the International
Criminal Court: a commentary (3rd edition 2016), eds. O. Triffterer, K. Ambos, p. 925, para. 44.
145
The Rome Statute of the International Criminal Court: A Commentary (2002), eds. Cassese, Gaeta and Jones,
pp. 678, 726.
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72. Third, that interpretation of Article 20(3) is confirmed by the drafting history of
the Statute.146 At various times, proposals were submitted to alter the provision
which became Article 20(3) so that any subsequent amnesty or pardon would be
taken into account. All were rejected. The deliberate rejection of those
73. The original Draft Statute for an International Criminal Court provided at Article
42(2)(b) for an exception to ne bis in idem where “the proceedings in the other court
were not impartial or independent or were designed to shield the accused from
international criminal responsibility or the case was not prosecuted diligently”.147 The
alternative Siracusa Draft proposed amending that subsection to add the words
in bold: “the proceedings – including clemency, parole, pardon, amnesty and other
similar relief – were not impartial or independent or were designed to shield the
accused from international criminal responsibility or the case was not diligently
prosecuted”.148 The notes to the amendment proposed in the Siracusa Draft clearly
explain that the inclusion of additional words was proposed as being considered
“necessary to clarify that the exception to the ne bis in idem principle for sham
proceedings extended beyond trial […]”.149 That the amendment proposed in the
Siracusa draft was not accepted, and that its proposed formulation did not find
its way into the Final draft, despite its rationale being clearly identified,
demonstrates that the focus of sham proceedings and shielding does not extend
beyond trial.
146
The Chamber is entitled to consider the preparatory work as a supplementary means of interpreting the
Statute pursuant to Article 32 of the Vienna Convention on the Law of Treaties. See Situation in the Democratic
Republic of the Congo, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 40.
147
Draft Statute for an International Criminal Court, adopted by the International Law Commission at its 46th
Session, 14 July 1994.
148
Draft Statute for an International Criminal Court, Alternative to the ILC Draft (Siracusa Draft), July 1995,
Article 42(2)(b), p. 65, available at: https://www.legal-tools.org/doc/39a534/pdf/.
149
Ibid.
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74. The inclusion of a draft article which would have created a further exception to
was also considered in detail and rejected during the 11th and 12th meetings of
the Committee of the Whole. In particular, the 11th meeting of the Committee of
the Whole, considered a proposed draft article 19 which would have provided
the sentence excludes the application of any appropriate form of penalty”.150 At both the
11th and 12th meetings, a significant number of States suggested or supported the
deletion of draft article 19.151 As a result, draft article 19 was not included in the
75. The drafting history of Article 20(3) thus confirms that amendments or drafts
sentence were considered and deliberately rejected. The natural conclusion must
be that “proceedings” retains its normal meaning and the supposed “lacuna”
that Article 20(3)(a) does not cover a subsequent executive decree was a
76. Fourth, legal dictionaries confirm that “proceedings” means matters that occur
in a court case – not after the court case has concluded.152 Thus, Blacks Legal
lawsuit, including all acts and events between the time of commencement and
150
Summary records of the Meetings of the Committee of the Whole, 11th Meeting, 22 June 1998,
A/CONF.183/C.1/SR.11, as introduced by Canada at page 214.
151
See, e.g., at the 11th meeting Afghanistan (id. at p. 215), Australia, Philippines, Colombia, Israel, Venezuela
(id. at p. 216), Poland, France (id. at p. 217) and at the 12th meeting Iraq (Ibid.), Japan, Indonesia, China, India
(id. at p. 218), Algeria, Switzerland, Jordan, Singapore, Brazil, Peru, Norway, Nigeria, Egypt (id. at p. 219),
Sudan, Italy, Morocco, Botswana, Austria (id. at p. 220), New Zealand, Vietnam, Uruguay, Oman, Iran (id. at p.
221).
152
The Appeals Chamber has on occasion relied on dictionary definitions to interpret provisions. See for
instance ICC-01/09-02/11-365, para. 53.
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person has committed a crime or, having already fixed guilt, decides on the
“proceedings” covers only matters which occur within a court case and ends
from the scope of the right to a fair hearing in international human rights law.
Human Rights only applies to the determination of civil rights and criminal
charges. It does not apply to events subsequent to a final conviction; it does not
clemency.155 The right to a fair hearing (criminal limb) does not apply to issues
about the existence or scope of amnesty legislation. 156 If the right to a fair hearing
does not apply to matters which occur after a conviction, that must be because
international human rights law recognises that the proceedings have concluded
at that point.
78. The language and drafting history of Article 20(3), together with the ordinary
meaning of the word ‘proceedings’ taken from legal dictionaries, all suggest that
the exception provided for in Article 20(3)(a) is limited to shielding which occurs
within the national court proceedings. It does not allow the court to consider a
(ii) The National Court Proceedings were not for the Purpose of Shielding
153
Blacks Law Dictionary (10 ed., 2014), p. 1398.
154
Id. at p. 456.
155
Dybeku v Albania, Application No. 41153/06, Judgment, 18 December 2007, para. 55; Aldrian v Austria
(1990) 65 DR 337 (European Commission).
156
Montcornet de Caumont v France, App No. 59290/00, Chamber Decision, 13 May 2003.
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79. In the event that the Court accepts the primary submission that any executive
action after trial is outside the scope of Article 20(3)(a), it is obvious that
proceedings were not for the purpose of shielding. Dr. Gadafi was tried,
convicted and sentenced. Far from shielding Dr. Gadafi from responsibility, the
80. In any event, even if the Court determines that the word “proceedings” is broad
enough to encompass Law No. 6 of 2015, the Defence submits that it could not
still be said that these national proceedings “were for the purpose of shielding”.
Article 20(3)(a) requires the Court to consider the proceedings in the other court
81. First, the concept of “shielding” applies where national authorities have
international human rights courts. These courts only infer that shielding has
taken place, in the face of evidence of a national investigation, where there are
the ECtHR expressly concluded that a national investigation into a shooting had
‘shielded’ the perpetrator. The basis for this finding was that “the authorities
ignored those significant facts [referring to the location of the fatal wound, the location of
157
See generally, Jordan v U.K., App No. 24746/94, Judgment, 4 May 2001, paras. 105-109.
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the spent cartridges and that the officer fired ‘in automatic mode’] and, without seeking
any proper explanation, merely accepted [the perpetrator’s] statements and terminated
the investigation”.158
83. The ECtHR has also determined allegations of shielding in a series of cases
concerning Croatia’s national investigation of war crimes. The ECtHR has clearly
made; on one occasion, the ECtHR concluded that the evidence did not amount
to shielding, despite allegations that arrest warrants were not issued and there
was a delay in investigations.160 The ECtHR, however, held that the procedural
obligation in Article 2 had been violated in a case where the State failed to follow
all available leads or to take steps to prosecute an accused who had been
84. Though it does not use the term “shielding”, the Inter-American Court of
that national proceedings were not capable of supporting a plea of ne bis in idem.
evidence and the military’s refusal to summon soldiers to give evidence, the
IACtHR held that the dismissal of national proceedings led only to a “fraudulent
res judicata” which could not satisfy the State’s obligation to investigate.
summarily dismissed as the product of the victims “sick mind”, there was only a
158
Nachova v Bulgaria, Application Numbers 43577/98 and 43579/98, Grand Chamber, 6 July 2005, para. 116.
159
Trivkanovic v Croatia, Application No. 12986/13, Chamber, 6 July 2017, para. 85.
160
Njezic and Stimac v Croatia, Application No. 29823/13, 9 April 2015, paras. 68, 72-74.
161
Jelic v Croatia, Application No. 57856/11, 13 October 2014, paras. 86, 89, 95.
162
Carpio-Nicole et al. v Guatemala, 22 November 2004, paras. 76(53)-76(54) and 132-135.
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sham double jeopardy which the State could not rely upon to preclude proper
investigation.163
85. The Libyan national proceedings against Dr. Gadafi are not remotely
comparable with the definition of shielding crafted by the above cases. The
criminal charges against Dr. Gadafi were not dismissed without investigation
and did not result in obvious loss of evidence to the detriment of the victims.
Instead, an investigatory process was followed, evidence was gathered and then
the merits of the case (so satisfying the victims’ legitimate interest in uncovering
the truth). Dr. Gadafi was convicted and sentenced. He even continued to serve
time in prison after the sentence was passed. As a result, the national
86. Second, pursuant to Article 20(3)(a) the exception to the fundamental human
rights principle of ne bis in idem only arises where national proceedings “were for
the “proceedings in the other court” as a whole, not to any distinct part of those
87. There is no evidence whatsoever that the national criminal proceedings were
Indeed, the Prosecutor went so far as to submit that there was “no suggestion
163
Gutierrez-Solar v Colombia,12 September 2006, para. 48(7), 96-98.
164
William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., 2016), p.
467.
165
Prosecution response to Application on behalf of the Government of Libya pursuant to Article 19 of the ICC
Statute, 5 June 2012, ICC-01/11-01/11-167-Red, para. 40. See further para. 46.
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Libya did not appear to be shielding Mr. Al-Senussi.166 Although the issue of
challenge (Al-Senussi) that there was no indication that proceedings were for the
and the above concessions by the Prosecutor were and remain plainly correct.
There is no indication that the court proceedings in Libya were anything other
than a genuine prosecution of Dr. Gadafi. Indeed, the very fact that Dr. Gadafi
suggest that the proceedings were for the purpose of shielding him.
88. Third, Law No. 6 of 2015, to the extent that the Court can take it into account,
does not amount to a blanket amnesty. It must be considered not in the abstract,
but instead as it applies specifically to Dr. Gadafi himself. Law No. 6 of 2015 was
passed after the verdict against Dr. Gadafi was pronounced. The Law was
limited in its applicability to Dr. Gadafi and had wider application. It is not a
law which shielded Dr. Gadafi from prosecution or prevented his trial from
taking place. Moreover, the effect of Law No. 6 of 2015 is that the “received
sentences” should be “dropped”. Importantly, that does not annul the trial
verdict, which remains a lengthy written judgment setting out findings against
Dr. Gadafi and so meets the victims’ legitimate interest in this regard. Law No. 6
of 2015 was also only applied to Dr. Gadafi when he was released in April 2016,
by which time he had been imprisoned for 4 years and six months in total
(including nine months of custody after the verdict was announced). Nor has Dr.
166
ICC-01/11-01/11-321, para. 79.
167
Gaddafi Admissibility Decision, para. 138.
168
Al-Senussi Admissibility Decision, para. 290.
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commits a felony within five years, the sentence against him could be
commutation of sentence does not undermine the facts that a trial took place,
that a judgment on the merits was entered, or that Dr. Gadafi was deprived of
89. In the light of the limited application of Law No. 6 of 2015 to Dr. Gadafi, in
assessing the issues in this application, the Pre-Trial Chamber does not need to
sentence following the conclusion of trial proceedings can sustain the conclusion
that the proceedings as a whole were for the purpose of shielding Dr. Gadafi. For
90. Nevertheless, to the extent that consideration of these issues requires the Pre-
Trial Chamber to consider broader questions of international law and policy, the
Defence submits that the Chamber should adopt a cautious and case-by-case
approach to the issues which may arise. Following international and internal
armed conflicts in diverse situations, sovereign States must balance the demand
for criminal accountability against the need to restore the peace and rebuild
society. Not every situation will call for the same resolution: some will be
period from 1979 – 2011, a total of 398 amnesty laws were passed by 115 States.169
The Defence submits that the Court should be slow to impose a red-line which
169
Louise Mallinder, Amnesties’ Challenge to the Global Accountability Norm?’, in Amnesty in the Age of
Human Rights Accountability (2012), eds. F. Lessa and L. Payne, p. 79.
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would prevent States adopting these alternative solutions in all future conflicts.
The Government of Libya is not and will not be the only State conditionally to
examples may be cited. First, in 1998, the British and Irish Governments signed
the Belfast Agreement (also known as the Good Friday Agreement), which
section 10 that “both governments will put in place mechanisms to provide for
following trials) did take place.171 The peace holds. Second, the Truth and
crimes provided that they met certain conditions, including that they had “made
a full disclosure of all relevant facts”. In that way, the sovereign State balanced
legitimate interest of the victims in establishing the truth with the need for
and respectfully urges the Pre-Trial Chamber to avoid any conclusion that
170
A copy of the Good Friday Agreement is available at the following United Kingdom government address:
https://www.gov.uk/government/publications/the-belfast-agreement (last accessed 5 June 2018).
171
The Good Friday Agreement has the status of an international treaty. Between 1998 and 2012, 506 prisoners
classed as “paramilitaries” or “terrorists” were released pursuant to the Agreement. The Good Friday Agreement
also included provisions that all remaining prisoners incarcerated by 2000 would be released. See generally:
http://www.democraticprogress.org/wp-content/uploads/2013/09/The-Good-Friday-Agreement-Prisoner-
Release-Processes.pdf (last accessed 5 June 2018).
172
A copy of the Act is available on the following Government of South Africa website:
http://www.justice.gov.za/legislation/acts/1995-034.pdf (last accessed 5 June 2018).
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d. It is not the case that the Libyan National Proceedings were “not
91. Article 20(3)(b) creates a second exception to the principle of ne bis in idem, which
was inconsistent with an intent to bring the person concerned to justice”. The
Appeals Chamber has set a high threshold in construing the similar exception in
Article 17(2)(c), holding that it is only satisfied where violations of due process
were “so egregious that the proceedings can no longer be regarded as being
accordance with that test, the Defence does not argue that the Libyan national
some of Dr. Gadafi’s rights. Nevertheless, a recognisable trial did occur; prima
facie the violation were not so egregious that the national proceedings could be
said to provide “no genuine form of justice” within the meaning of the Appeals
Chamber judgment.
(i) The Test to be applied is whether the violations of fair trial rights are “so egregious”
relation to Article 17(2)(c) that the Court is not primarily called upon to
determine whether certain provisions of human rights law are being violated by
173
Al-Senussi Appeals Judgment, paras. 190 and 230.
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the national proceedings,174 but that the question is whether any violations of fair
trial rights are “so egregious that the proceedings can no longer be regarded as
being capable of providing any genuine form of justice to the accused”. 175 The
Appeals Chamber concluded that the fact that Mr. Al-Senussi had not been
legally represented up to that point did not meet this high threshold. 176 Indeed,
the only example the Appeals Chamber gave of a situation meeting this
threshold arises where the national proceedings were “little more than a
93. In defining that test, the Appeals Chamber set a deliberately high threshold by
requiring that any violations of fair hearing rights must be so “egregious” that
tried by the Court for the same conduct that he has been tried for
ii. As the Appeals Chamber held, the Court was not established to be an
international human rights court sitting in judgment over the fair trial
occasion.180
174
Id. at paras. 134-232.
175
Id. at paras. 190 and 230.
176
Id. at paras. 191, 200-202.
177
Id. at para 230.
178
Paragraph 10 of the Preamble and Article 1 of the Statute; Al-Senussi Appeals Judgment, para. 215.
179
Al-Senussi Appeals Judgment, para. 219; see further para. 225.
180
ICC-01/11-01/11-483, paras. 20-11.
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iii. Further, the exceptions to Article 20(3) are, like the concept of
benefit the accused.182 The logical corollary is that Article 20(3)(b) is not
94. Although the decision in Al-Senussi related to Article 17(2), the principles set out
apply equally to the similar test in Article 20(3). The Appeals Chamber itself
described the criteria set out in the two provisions as being “the same or very
similar” and concluded that it was “reasonable to assume that they were
intended to have the same meaning”.183 The same point has been made by
the threshold in Article 20(3)(b) should be ever higher because Article 20(3)(b)
protects an accused person’s fundamental right not to be tried twice for the same
offence. As the Appeals Chamber observed, “it is less easy to imagine that there was
an intention for an accused to be tried again at this Court for the same conduct that had
already been tried nationally on the basis that the domestic trial did not fully comply
(ii) The Libyan proceedings were not so egregiously unfair that they are not capable of
95. The Appeals Chamber has confirmed the Pre-Trial Chamber’s finding that
“alleged violations of the accused's procedural rights are not per se grounds for a finding
181
Al-Senussi Appeals Judgment, para. 218.
182
Id. at paras. 221-222.
183
Id. at para. 222.
184
William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., 2016), p.
509 (noting that Article 20(3)(b) is “broadly similar in scope” to Article 17(2)(c)).
185
Al-Senussi Appeals Judgment, para 222.
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held that “depending on the specific circumstances, certain violations of the procedural
rights of the accused may be relevant to the assessment of the independence and
impartiality of the national proceedings that the Chamber is required to make, having
regard to the principles of due process recognized under international law, under article
17(2)(c) of the Statute. However, this latter provision, identifying two cumulative
requirements, provides for a finding of only when the manner in which the proceedings
are being conducted, together with indicating a lack of independence and impartiality, is
to be considered, in the circumstances, inconsistent with the intent to bring the person to
equally relevant to the present Application, did not find that there was “a
systemic lack of independence and impartiality of the judiciary such that would
impartially and they [...] are being conducted in a manner which, in the circumstances is
inconsistent with an intent to bring [Mr Al-Senussi] to justice’, within the meaning of
96. In the present case, no reasonable observer would argue that the Libyan
within the meaning of Article 17(2)(c) of the Statute. Rather, the steps taken by
Libya, including the arrest of Dr. Gadafi, the establishment of detention facilities
the content of the evidence presented by the Libyan prosecutor to support the
186
Al-Senussi Admissibility Judgment, para. 231 (citing Al-Senussi Admissibility Decision, para. 235).
187
Al-Senussi Admissibility Decision, para. 235.
188
Al-Senussi Admissibility Judgment, paras. 242 to 258.
189
Al-Senussi Admissibility Decision, para. 258.
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laws to allow trial via video link and Dr. Gadafi’s attendance via the same,
makes it abundantly clear that Libya was determined to bring him to justice
97. The Defence submits that, although criticisms can be levied at various aspects of
the national proceedings, they cannot be said to have been so egregiously unfair
98. As to the correct application of this test, the natural meaning of the word
trial rights are egregious, the Court may be assisted by the jurisprudence of the
ECtHR has held that a flagrant denial of justice “goes beyond mere irregularities
99. It is noteworthy that in these admissibility proceedings, Dr. Gadafi does not
argue that his fair trial rights were egregiously violated. His instructions in this
190
Merriam-Webster Online Dictionary.
191
Which the Court may take into account pursuant to Article 21(1)(c).
192
Soering v UK, App no. 14038/88, Judgment, 7 July 2989, para. 113.
193
Ahorugeze v Sweden, App no. 27075/09, Judgment, 27 October 2011, para. 115.
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regard are specific and he signs this filing along with counsel. The right to a fair
circumstances where the victim of that alleged unfairness has made an informed
choice not to do so. Indeed, that would create the very situation which the
drafters of the Statute cannot have intended that the person whose rights were
exposed to a second trial.194 That would result in Dr. Gadafi’s rights being
breached twice: once by national proceedings being unfair and a second time by
amounting to justice.195 Article 19(10) of the Statute grants the Prosecutor the
discretion to request a review of that decision if “fully satisfied that new facts
have arisen which negate the basis” of the admissibility decision. The trial of Dr.
Gadafi and Mr. Al-Senussi concluded in July 2015 – two and a half years ago. In
that time, the Prosecutor has not requested the Court to review the admissibility
of the case against Mr. Al-Senussi.196 The Prosecutor must be presumed therefore
proceedings to negate the conclusion that any violations of due process rights
were not so egregiously unfair that the national proceedings were incapable of
providing justice.
194
Al-Senussi Admissibility Judgment, para. 222.
195
Id. at paras. 262, 297.
196
See for instance, Statement of the ICC Prosecutor to the UN Security Council on the situation in Libya, 8
May 2017, paras. 20-22.
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trial has occurred. The trial was opened after the conclusion of the investigation
were permitted to consult with him in private in Zintan. 197 A reasoned Judgment
was delivered at the conclusion of proceedings, which explains the basis for the
verdict against Dr. Gadafi.198 Accordingly, the exception set out in Article
VII. Classification
102. This filing, as well as Annexes C and H hereto, are classified as confidential as
respect to Annexes A and B, while the Defence does not believe there is any
reason that the documents and information therein should not be made publicly
“ICC Restricted”, the Defence classifies the two annexes as confidential at this
time until clarification can be sought from the Prosecution on their classification.
Conclusion
103. Accordingly, and for the reasons detailed in this Application and its
accompanying annexures, the Defence respectfully submits that the present case
against Dr. Saif Al-Islam Gadafi before the ICC must be declared inadmissible.
197
Alatairi Statement) (Annex C), paras. 21-23.
198
LBY-OTP-0062-0280.
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