The admissibility of Saif Gaddafi case in ICC

On 5 April 2019, Pre-Trial Chamber I of the International Criminal Court (ICC), by majority, rejected the admissibility challenge presented by the Defence of Mr. Saif Al-Islam Gaddafi. The majority, constituted by Judge Péter Kovács and Judge Reine Adélaïde Sophie Alapini-Gansou, decided that the case against Mr. Gaddafi was admissible before the Court.

Judge Marc Perrin de Brichambaut will file a minority opinion in due course. 

On 6 June 2018, the Defence filed an admissibility challenge concerning the case against Mr. Gaddafi asserting that, on 28 July 2015, Mr. Gaddafi was convicted by the Tripoli Criminal Court for substantially the same conduct as alleged in the proceedings before the ICC. Mr. Gaddafi further alleged that, on or around 12 April 2016, he was released from prison pursuant to Law No. 6 of 2015 which provided for a general amnesty. Thus, Mr. Gaddafi submitted that the case against him on charges of crimes falling within the jurisdiction of the Court was inadmissible.

The majority's determination was made after careful review of the different submissions and observations of the Defence, the Prosecutor, the Legal Representatives of Victims, the amici curiae, and previous filings from the Government of Libya.

The majority found that in order for a second trial not to be permitted before this Court, for the same conduct, the decision of the Tripoli Criminal Court would have had to be final and acquire the effect of res judicata. The majority was not satisfied that this requirement was met in the case at hand as the judgment of the Tripoli Criminal Court was still subject to appeal and was rendered in the absence of Mr. Gaddafi (in absentia), which left open the possibility of reinstituting judicial proceedings.

The majority was also not satisfied that the passing of Law No. 6 of 2015 rendered the case inadmissible before the Court. The majority found that Mr. Gaddafi was excluded from the amnesty and/or pardon provided by Law No. 6 of 2015. Even assuming that Law No. 6 of 2015 would apply to Mr. Gaddafi, it still did not render proceedings final. According to the majority, granting amnesties and pardons for serious acts such as murder constituting crimes against humanity is incompatible with internationally recognised human rights. Amnesties and pardons intervene with States' positive obligations to investigate, prosecute and punish perpetrators of core crimes. In addition, they deny victims the right to truth, access to justice, and to request reparations where appropriate.

Decision on the admissibility challenge by Dr. Saif Al-Islam Gaddafi was made in pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute.

Compiled by Law Desk (SOURCE: icc-cpi.int).