Admissibility Challenge in The Prosecutor v. Saif Al-Islam Gaddafi: Take Two

[Gaiane Nuridzhanian is a PhD candidate at University College London, Faculty of Laws.]

Recent reports on release of Saif al-Islam Gaddafi and his plan to run in Libya’s presidential elections have stirred some discussion about the future of the case The Prosecutor v. Saif Al-Islam Gaddafi. A new development in the case came this June. The defence for Gaddafi lodged an admissibility challenge on the basis of Article 17(1)(c) and the ne bis in idem principle enshrined in Article 20(3) of the Rome Statute (RS). The defence submits that Gaddafi has already been tried for the same conduct before a court in Libya; that the proceedings in the other court were genuine in the sense that they were not for the purpose of shielding the person from criminal responsibility, that they did not lack in independence or impartiality and did not involve egregious due process violations so as to be inconsistent with an intent to bring Gaddafi to justice, and that the subsequent release of Gaddafi did not affect the genuine nature of his trial in the domestic court.

This blog post discusses admissibility issues that the ICC may face when deciding on Gaddafi’s challenge.

Background

In the ICC, Gaddafi was charged with crimes against humanity of murder and persecution committed in various locations in Libya, in particular in Benghazi, Misrata, Tripoli and other neighbouring cities, from 15 February 2011 until at least 28 February 2011, in violation of articles 7(l)(a) and (h) of the Statute. Libya challenged the admissibility of the case in 2012 claiming that it was investigating the same case against Gaddafi domestically. Gaddafi opposed Libya’s admissibility challenge.

In 2013 the ICC declared the case admissible. The Pre-Trial Chamber found that Libya had failed to show that it was investigating the ‘same case’: Libya failed to produce sufficient evidence to show that it was investigating the same conduct as the conduct underlying the charges in the ICC case. The Pre-Trial Chamber further concluded that Libya was unable genuinely to investigate and prosecute the case because of unavailability of its judicial system. Libya ‘faced substantial difficulties in exercising its judicial power over the entire of its territory’. As a result, it was unable to secure custody over Gaddafi and obtain witness testimony. It faced difficulties in appointing a counsel to Gaddafi. In 2014 the Appeals Chamber upheld the admissibility decision.

It has been reported that on 28 July 2015 Gaddafi was convicted by the Tripoli Court of Appeal for crimes committed in the course of the attempt to suppress the February 2011 revolution in various localities in Libya, including Benghazi and Misrata. These included killing, threatening with violence, instigating to unlawfully detain and intimidate those who revolted against the former regime. Gaddafi was sentenced to death penalty. The case appears to be pending before the Supreme Court.

Procedural issues

Article 19(4) provides that admissibility or jurisdiction of a case can be challenged only once by an accused or person against whom an arrest warrant or summons to appear have been issued or by a State which has jurisdiction over the case. The Court may, in exceptional circumstances, grant leave to bring a challenge more than once or at a time later than the commencement of a trial. An admissibility challenge on the grounds of ne bis in idem falls within such exceptional circumstances. This follows from the wording of Article 19(4). Ne bis in idem is the only basis for challenging admissibility of a case at the commencement of a trial or a later stage. Furthetmore, according to Article 20(3), holding a trial where there has already been a domestic trial for the same conduct may put the ICC in breach of the principle of ne bis in idem. The Court should allow repeated challenge to admissibility of a case where, as in Gaddafi case, it is based on Article 17(1)(c) and the ne bis in idem principle found in Article 20(3).

Substantive issues

According to Article 20(3), the ICC is barred from trying a person who has already been tried before another court if the trial was in relation to the conduct that underlies the charges brought in the ICC case, unless the case falls under one of the exceptions to ne bis in idem.

The question of finality

There has been a trial and a judgment of conviction in Gaddafi’s domestic case. However, the domestic criminal proceedings do not seem to have ended. The case is pending review before the Supreme Court.

A domestic trial will not trigger protection of the ne bis in idem before the judgment of conviction or acquittal resulting from the trial becomes final (Bemba, para 248). The ne bis in idem in Article 20(3) operates between the ICC and another court. The provision therefore applies to a great variety of legal systems that may be competent to prosecute crimes falling within the jurisdiction of the Court. Whether a domestic judgment is final will ultimately depend on the relevant domestic law. Thefore, the Court will need to look into the domestic law, when deciding whether the person ‘has already been tried’ and whether a domestic judgment is final for the purposes of ne bis in idem.

The relevance of the ‘substantially the same conduct’ test

The ne bis in idem in Article 20(3) bars the ICC from trying a person who has already been tried with respect to the ‘same conduct’ in another court. The Court has used a ‘substantially the same conduct’ test, which means that the domestic authorities and the ICC are prosecuting the ‘same conduct’ where there is substantial overlap between the incidents investigated by the domestic authorities and the ICC or where the investigation by the domestic authorities covers the crux of the ICC’s case or the most serious aspects thereof (Gaddafi, Appeals Chamber, para 72).

Gaddafi’s admissibility challenge raises the question of whether the ‘substantially the same conduct’ test also applies to ne bis in idem in Article 20(3).

It will be recalled that Article 20(3) – through the reference in Article 17(1)(c) – forms part of the ICC admissibility rules. It is only logical that the same test should apply for all rules governing admissibility of cases, whether there is an ongoing domestic investigation, a decision not to prosecute or where there has already been a domestic trial. Furthermore, in view of the complementarity-based admissibility regime of the ICC, the ‘same conduct’ test should allow for a degree of variation between the conduct investigated by the ICC and that tried in the domestic case. The ‘substantially the same conduct’ test should therefore also apply to the ne bis in idem­ and the respective admissibility rule. Its application in Gaddafi’s case, given the available information, is likely to lead to the conclusion that the charges in the domestic trial and in the ICC case concerned the same conduct.

Exceptions to ne bis in idem

The trial by the ICC in respect of the same conduct is allowed where the proceedings in the other court not of genuine nature. In other words, they ‘were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ICC’ (Article 20(3)(a)) or ‘otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’ (Article 20(3)(b)). These exceptions to Article 20(3) ­– similarly to the virtually identical criteria of unwillingness genuinely to conduct the proceedings found in Article 17(2)(a) and (c) – render a case admissible before the ICC where the domestic proceedings were aimed at allowing the person concerned to evade justice. A breach of due process guarantee per se is not a basis for exception to ne bis in idem and, by implication, for admissibility of a case in which there has already been a trial for the same conduct.

Furthermore, the criterion of ‘inability’ in Article 17(3), while part of the admissibility rules in Article 17(1)(a) and (b), is not mentioned in Article 17(1)(c). Neither is it among the exceptions to ne bis in idem in Article 20(3). Gaddafi’s case was declared admissible by the ICC partly owing to Libya’s inability genuinely to investigate the case. These findings may no longer be relevant in the context of ne bis in idem. The Rome Statute does not provide a separate basis for admissibility of a case where the person has been tried in circumstances amounting to inability genuinely to conduct proceedings such as the absence of the accused, witnesses or necessary evidence resulting from the state’s lack of control over its territory.

The effect of the amnesty

Gaddafi’s challenge raises an interesting issue of the effect of amnesty on application of ne bis in idem in Article 20(3).

An amnesty granted after the person had already been tried in a domestic court does not necessarily render ne bis in idem inapplicable and the case admissible. This is because Article 20(3)(a) and (b) provides for exceptions to ne bis in idem where the ‘proceedings in other court’ were not of genuine nature. This wording excludes any measures affecting the execution of a sentence that are adopted outside the trial itself. An attempt during the drafting of the Rome Statute was made to include a provision allowing the ICC to find a case admissible where a ‘manifestly unfounded’ decision on parole or commutation of a sentence interfered with application of the appropriate penalty. No agreement was reached, however: many states believed that the issue was too controversial; others considered the provision unacceptable since it would allow the Court to interfere with sovereign right of the states to decide on such matters as commutation of sentence and the competence of administrative authorities to administer sentences; only few states supported the provision. At the same time, an amnesty granted in connection with a trial that was not of a genuine nature or an amnesty that reveals the sham character of the trial does bring the case within the exceptions to ne bis in idem.

Gaddafi was released in April 2016 allegedly pursuant to an amnesty law adopted in 2015. The circumstances surrounding the grant of amnesty in this case are not straightforward and may raise questions as to the genuine nature of the trial against Gaddafi. Firstly, the amnesty and release were granted while the domestic case was still pending review before the Supreme Court, which to a certain degree renders the continuation and the final outcome of the criminal proceedings futile. Secondly, it would seem that the amnesty was applied selectively. Gaddafi was singled out for amnesty among the 37 defendants in the same criminal case. Furthermore, it has been reported that amnesty was not granted by a judicial decision, as apparently required by the 2015 law, and that there had been some objections from Libyan officials as to the authenticity of the decision ordering Gaddafi’s release.

Conclusion

Gaddafi’s admissibility challenge raises a number of unsettled admissibility issues related to the application of the principle of ne bis in idem in Article 20(3). In the opinion of the author, certain findings of the Court made in the context of other admissibility rules (for instance, the ‘substantially the same conduct’ test) are equally applicable to ne bis in idem and the respective admissibility rule. Other matters (those related to the final nature of judicial decisions or to the effect of an amnesty) are novel and require a ne bis in idem-specific solution.