Case: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi
Today, 21 May 2014, the Appeals Chamber of the International Criminal Court (ICC) delivered its judgment confirming the decision of the ICC Pre-Trial Chamber I declaring admissible the case against Saif Al-Islam Gaddafi. The Appeals Chamber's judgment was issued by majority, with a separate concurring opinion by Judge Sang-Hyun Song. Judge Anita Ušacka adopted a dissenting opinion.
On 31 May 2013, Pre-Trial Chamber I had
rejected Libya's challenge to the admissibility of the case against Saif Al Islam Gaddafi and reminded Libya of its obligation to surrender the suspect to the Court. Libya appealed this decision on 7 June 2013. According to article 17 (1) (a) of the Rome Statute, a case is inadmissible before the Court where the same case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unable or unwilling genuinely to carry out the investigation or prosecution.
In an open hearing, today, Judge Erkki Kourula, Presiding Judge on this appeal, read a summary of the Appeals Chamber's judgment. He explained that the Appeals Chamber was of the view that the Pre-Trial Chamber did not err in either fact or law when it concluded that Libya had fallen short of substantiating, by means of evidence of a sufficient degree of specificity and probative value, that Libya's investigation covers the same case that is before the Court.
The Appeals Chamber also rejected Libya's arguments that the Pre-Trial Chamber had made procedural errors when reaching its decision. On that basis, the Appeals Chamber confirmed the Pre-Trial Chamber's decision, according to which Mr Gaddafi's case is admissible before the ICC.
Judge Song appended a separate opinion to the judgment. In his view, Libya was investigating the same case. Nevertheless, he concluded that the case against Mr Gaddafi was admissible before the Court because the Pre-Trial Chamber did not err when finding that Libya was unable to obtain custody over Mr Gaddafi for the purposes of trial.
Judge Ušacka appended a dissenting opinion to the judgment. In her view, the Pre-Trial Chamber's test for determining whether Libya was investigating the case against Mr Gaddafi was erroneous and too demanding in its application. In her opinion, the Pre-Trial Chamber's decision should be reversed and remanded for a new decision.
Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled "Decision on the admissibility of the case against Saif Al-Islam Gaddafi" (including Separate Opinion of Judge Sang-Hyun Song and Dissenting Opinion of Judge Anita Ušacka)
Background: The situation in Libya was referred to the ICC Prosecutor by the United Nations Security Council, through the unanimous adoption of Resolution 1970 on 26 February 2011. On 27 June 2011, Pre-Trial Chamber I issued warrants of arrest for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces. On 22 November 2011, Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to his death.
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