Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

http://opiniojuris.org/2014/03/25/al-senussi-gaddafi-kind-prosecution-begin-next-month/

2 Responses

  1. Kevin
    A provocative post as always.  Allow me to confine my response solely to the issue of video link at the ICC.  The ICC has never ruled on the legality of an accused appearing by video link.  The recent ruling by the Trial Chamber focused on the absence of the accused at trial.  In fact, everything that the Court has said to date (Trial Chamber and Appeals Chamber) tends to suggest that they would support, in some form, the idea of an accused appearing by video link.  To take two examples.  First, on 26 March 2013, Trial Chamber V, following a request from the Kenyatta legal team, sought observations from the Registry on the modalities of video link.  They could have simply dismissed the application outright.  Instead, they were more concerned about the practicalities and logistics of going down this path than raising questions about the legality.  The Registry provided their observations on 9 April 2013, although in the end there was no ruling because the matter was overtaken by events.  Secondly, the Appeals Chamber in the decision of 25 October 2013 ruled on the issue of continuous presence at trial (you have of course written about this).  The Appeals Chamber was explicit in stating that this was the only issue before them.  However, they went on to say that before permitting an absence “the possibility of alternative measures must have been considered”.  Again, this suggests room for an argument that video link would be such an alternative measure.  Rule 134bis adopted by the ASP last November simply made that explicit.
     

  2. Shehzad,

    As my previous posts made clear, I have much less problem with using videoconferencing than appearance by counsel or simply excusing important accused — and I think that the videoconferencing provision is the most likely to survive Appeals Chamber review. (Of course the Trial Chamber is okay with it; it’s okay with almost any justification for allowing Ruto and Kenyatta to stay home.) My point is — and has always been — that the ASP has not interpreted Art. 63(1), it’s amended it sub silentio — and deliberately amended it sub silentio, because it would have been too difficult to amend it openly. As I’ve pointed out before, presence in Art. 63(1) means physical presence — as indicated most dramatically by the specific reference to videoconferencing as an exceptional measure in Art. 63(2). Any relaxation of that requirement should have been done through amendment. Otherwise, the amendment procedures in the Rome Statute have little meaning.

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