As the trial for ‘Case 630’ resumes in Tripoli, a lot of sand has been kicked up by human rights lawyers and human rights NGOs culminating in a sand storm in what appears to be an intent to hide the genuine facts. This is a situation where the one who shouts the loudest or has the best PR campaign culminating in the most-widely-covered press conference, wins.
Therefore, we would like to dispel some rumors that have become pseudo-facts. As these human rights lawyers or NGOs now denounced for ‘actively promoting the (Gaddafi) regime’, declare ICC jurisdiction, we feel compelled to provide some pertinent facts. We will discuss Abdulla Senussi’s ICC ruling; the Libyan Foreign Ministry with reference to article 16 of the Rome Statute and conclude by a quick summary of Doughty Street Chambers and ALL their Libyan clients in at the ICC. This firm represents THREE clients on BOTH sides: Saif Gaddafi, Abdulla Senussi AND Libya. Northwestern Law PDF
Finally, although outright rejected by these same NGOs, we will also discuss the innovative, LEGAL use of video conferencing for Saif which is used for defendants throughout the developed world (USA) and extensively in Italy in their Mafia trials because of EXACTLY the same security issues faced by Libya today. We hope this guide provides a cast of characters and themes surrounding the ICC case by providing analysis of overlooked experts.
In the literal sense, the ICC is a Big Brother casting a shadow over these Libyan proceedings. As such, what are the statistics of the International Criminal Court? The less-than-stellar record is: 12 years, a cost of $1 Billion AND ONLY two successful convictions. We add: in three years, 1958 legal submissions, petitions and etc., have been generated just focusing on Libya. As most ICC experts agree, Libya is the turnaround case to rectify the abortive record of the Court. Libya is where R2P, the principal of the Responsibility to Protect was first utilized from inception and now those who coined the term wish to see it succeed to its end. But suffice it to say, a lot of people have reputations riding on Libya. (See our June 14th article: George Clooney’s Friends-Amal Alamuddin, Samantha Power and R2P: Implications for Libya.)
This is the same Court that gave a public rebuke to former Chief Prosecutor Luis Moreno Ocampo whose office vigorously pursued the original arrest warrants and dared to question the International Criminal Court’s authority over these cases. We quote:
“The Office of the Prosecutor’s position in this admissibility challenge is significant. The prior Prosecutor, Luis Moreno Ocampo, had from the beginning taken the position that the Libyans should be allowed to prosecute the two defendants, once stating that he was “not competing for the case.” Such remarks, coupled with statements about Gaddafi’s guilt in public appearances with members of the Libyan transitional government, prompted the Office of Public Council for the Defense (OPCD)—a sort of legal aid office that represents defendants before they appoint private counsel—to move for Ocampo’s disqualification from the Gaddafi case on grounds of partiality. (Biased towards Libya) Although the motion was not granted, it did earn Ocampo a public rebuke from the judges, who ruled that the prosecutor’s behavior was “clearly inappropriate in light of the presumption of innocence” and might “lead observers to question the integrity of the Court as a whole…”
The ICC Ruling on Abdulla Senussi
The ICC Approved the Libyan Justice System. Yes, this is CORRECT.
As Libyans struggle to exercise THEIR right to try THEIR accused within THEIR ICC APPROVED justice system, we wish to start with the ICC’s right to Abdulla Senussi. We note that the International Criminal Court DID NOT automatically have jurisdiction. Rather, the ICC retains jurisdiction ONLY IF Libya is unwilling and unable to provide the trial. The ICC Judges ruled on the 11th of October 2013 that Libya IS WILLING and ABLE to provide a fair trial for Abdulla Senussi. Therefore, the ICC APPROVED of the justice system in which Abdulla Senussi will be tried. Dare we say it; the Judges PRAISED the ‘Libyan competent authorities’ in their press release. Arabic PRESS RELEASE, English SUMMARY or PDF: Senussi 11October2013
We start with the Chambers’ note that:
‘The assistance and support received by Libya from a number of UN agencies, the European Union and several national Governments, which focused on the provision of transitional justice measures, was said to have had a positive impact upon the prospective trial’.
For the analysis of this ruling, we will refer to Beth Van Schaack who is a Visiting Scholar at the Center for International Security & Cooperation at Stanford University and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. Our PDF copy: ‘ICC Case Against Spy Chief Senussi Deemed Inadmissible I Just Security’
Ms. Van Schaack noted that ‘The Chamber considers that the evidence submitted by Libya is sufficient to conclude that concrete and progressive steps are being undertaken by the domestic authorities in the proceedings against Mr. Al-Senussi.’ She said that The Pre-trial Chambers (PT1) ‘in their ruling The ICC ruled on 11th of October 2013, that “Al Senussi will be tried in Libya according to the principle of complementarity.”
In it, PTC I ruled that the case against Abdullah Al-Senussi—Libya’s former Director of Military Intelligence—is inadmissible before the ICC because there are domestic proceedings against him covering substantially the same conduct that is the subject of the ICC charges against him.
In other words, Libya has demonstrated that the cases were essentially the same and that the state is WILLING and ABLE to proceed.
The Senussi Admissibility Ruling
Ms. Van Schaak continued by explaining that under the principal of complementarity, Libya must satisfy both parts of the Court’s two-step test. The test asks:
- Are there national proceedings involving the same defendant for substantially the same conduct? If so,
- Is the state unwilling or unable to genuinely proceed?
Ms. Van Schaack’s provided expert analysis in her article: ICC Case Against Abdulla Senussi Deemed Inadmissible. However, we will highlight only parts as it is more detail than we require for our discussion. However, Ms. Van Schaack noted in support of their petition: ‘Libya submitted court records, witness statements, evidentiary materials (including intercepts, orders, medical records, and flight documents), and other information to demonstrate that the local charges against Senussi covered a range of unlawful conduct, including crimes committed in Benghazi in February 2011. Prominent among these additional allegations include murder charges for the 1996 Abu Salim prison massacre, which resulted in the death of more than 1200 inmates‘.
With respect to the first step of the complementarity test, Ms. Van Schaack commented that the Chamber determined that Libya satisfied the first part: ‘In its submissions, the (ICC) Prosecutor took Libya’s side and the Chamber agreed with the Prosecutor’.
‘The Chamber considers that the evidence submitted by Libya is sufficient to conclude that concrete and progressive steps are being undertaken by the domestic authorities in the proceedings against Mr. Al-Senussi, and to identify the scope and the subject-matter of such proceeding. … The Chamber is satisfied that the facts that have been investigated by the Libyan authorities in relation to Mr. Al-Senussi… comprise the relevant factual aspects of Mr. Al-Senussi’s conduct as alleged in the proceeding before the Court.’
As to the second step of the complementarity test, that is: willingness and ability, as noted by Ms. Van Schaack, the Chamber discussed the following issues:
- Delay in due process: ‘is not an “unjustified delay inconsistent with an intent to bring Mr. Al-Senussi to justice,” particularly in light of the need to substantially rebuild Libya’s judicial system.’
- Gaddafi-era judges and the Isolation Law: ‘did not indicate “a systemic lack of independence and impartiality of the judiciary”.’
- Security Situation: ‘the lack of control over certain other detention facilities, the threats faced by judicial authorities, and the concerns of victims and witnesses did not lead to a finding of “inability”…’
- Mr. Senussi’s lack of Legal Counsel: ‘The Chamber noted that his lack of counsel does not justify a finding of unwillingness’… ‘Rather, from the evidence and the submission before the Chamber, it appears that Mr. Al-Senussi’s right to legal representation has been primarily prejudiced in so far by the security situation.’
Again, The Chamber SIDED with Libya. Therefore, according to the International Criminal Court Judges and Chief Prosecutor Fatou Bensouda, Libya’s justice system was ICC APPROVED for Abdulla Senussi.
The Saif Admissibility Ruling
Paradoxically, it is a completely different story with Saif. Libya failed in both steps under the same principal of complementarity. Filed by Matrix Chambers Team 1 by Philippe Sands in May 2012, the Chambers rejected Libya’s claim. Ms. Van Schaack noted ‘that the material submitted did not allow the Chamber to discern the actual contours of the national case against Gaddafi.’ She also noted that the failure of disclosure due to time constraints hampered the first step.
As to the second step, Ms. Van Schaak noted the problem of Saif detention in Zintan, even though Saif stated his desire for the trial to take place in Zintan rather than Tripoli. The Chambers noted that it did not satisfy willingness and ability, ‘because Libya was not able to secure the transfer of Gaddafi “into state custody” from Zintan or otherwise exercise full control over certain territories where witnesses might reside. ‘ ‘The Chambers also found that ‘ there were “practical impediments” to securing legal representation for Gaddafi.’
It would seem a bit myopic of the Chambers to consider the same judicial system satisfactory for one accused yet not for another. The SAME issues argued ‘justifiable’ and ‘sufficient ‘ for Abdulla Senussi such as judicial system, security of witnesses, legal representation are NOT considered adequate for Saif.
As for the argument of willingness and ability, it must be noted that same Libyan authorities considered to have taken ‘progressive investigative steps’ for Abdulla Senussi, did what WE consider ‘progressive investigative steps’ with Saif too. After determining that moving Saif would be a considerable security risk, the same Libyan authorities decided to leave him in Zintan and hook him up by video conferencing.
E-Justice as it is known, is electronic video conferencing. It is utilized throughout the world including the USA and Italy for defendants. Important for this discussion is that e-justice is used in Italy when prosecuting defendants in Mafia cases. HERE This is due to security concerns, EXACTLY like the security situation in Libya. It is a legal, tried and tested solution to Saif’s detention in Zintan.
As an example of a well-researched endorsement of this innovative trial procedure, we provide this PDF written by a member of The Ministry of Security and Justice, The Hague. Therefore, as this endorsement is written by one of their own, it would be hypocritical of the ICC in The Hague to contradict itself by rejecting this trial procedure as a solution to Saif’s detention in the government-sponsored prison in Zintan. PDF: THE HAGUE Video Conferencing See Page 13 of Videoconferencing in criminal proceedings by Evert-Jan van der Vlis.
Abdulla Senussi’s Disgruntled Legal Team
With all the fervor in May 4th press conference, Amal Alamuddin it seems, failed to mention all the above facts. She did not dwell on the fact that the Chief Prosecutor and Chambers outright rejected their claims or that Libya’s justice system was approved by the ICC. What she did say, was in direct contradiction to the ICC ruling. Ms. Alamuddin said that, ‘The whole point of the ICC is to be there when national systems can’t do the job.’ Mr. Emmerson, lead counsel, ‘described the Libyan justice system as “in a state of collapse” and added: “It is incapable of conducting fair trials of any Gaddafi-era officials”. And now we know the TRUTH.
As to the issue of a foreign lawyer for Mr. Senussi, we would like to add that as in most of the world, and in Libya, foreign lawyers are banned from practicing before a domestic court. Hence, we have the lawyer licensing system of jurisdictions. Excluding exception made by special ruling, Abdulla Senussi will be represented by a Libyan Lawyer.
On a very serious note, as of their May 8th petition to the ICC, Abdulla Senussi’s team stated that they wish the ICC Chambers to intervene to stop the Libyan proceedings AND report Libya to the Security Council. This would make their third attempt.
Since Ben Emmerson assumed the role of legal counsel for Abdulla Senussi in January 2013, he worked to hasten the Security Council to impose international sanctions on Libya until it capitulates and releases Abdulla Senussi to the ICC. The rhetoric leveled at that the Libyan government included this comment:
“It is proof positive of the urgent and imperative need for the (U.N.) Security Council to impose sanctions on Libya for its flagrant, deliberate and grave violations of Security Council resolution 1970.”
Yet, this is NOT just rhetoric; Mr. Emmerson wrote simultaneously to the President of the UN Security Council “and British Foreign Secretary William Hague to ask them to use their influence to put pressure on the Libyans.” In this letter to the foreign office, “Emmerson alleges Senussi was subject to ‘unlawful rendition’ and handed over to the new Libyan government for 250m dinars (£125m).”
According to IBA Global Insight, Emmerson wrote in his submission to the ICC:
‘It is clear that intervention by the Security Council is now the only means of securing compliance by Libya with its international obligations.’ He went on to say, ‘The Security Council now needs to take action. If Libya fails to comply, sanctions should be imposed.’
As Libya is being threatened with international sanctions, we have to ask the question: Did Libya need to go through the litigation at the ICC? Was there another option?
The Libyan Foreign Ministry & Article 16 of the Rome Statute, the founding treaty of the ICC.
FIRST: Was ALL this ICC litigation the only SOLUTION to the ICC problem? NO.
From 2011, Libya had the diplomatic OPTION to exercise its right under article 16 of Rome Statute to ask the Security Council to CANCEL the ICC proceedings. Dr. Payam Akhavan, former legal adviser to the ICC prosecutor’s office and presently representing Libya at the ICC said it COULD BE CANCELLED through diplomatic channels, i.e. the United Nations’ Security Council. We quote:
“One final point is that the Libyan case has been put before the Court by the Security Council referral and there is …huh… Libya has never signed the statute of the court, so the court only has jurisdiction because of the UN Security Council referral and the Security Council could decide to withdrawal that referral in deference to the Libyan government. In which case, the ICC prosecutor would have no leg to stand on…”
In other words, the Court has NO RIGHT to Saif or Abdulla Senussi if the Security Council withdraws that referral to the ICC. The mechanism Dr. Akhavan refers to is Article 16 of the Rome Statue. His opinion was given prior to representing Libya, in a November 20, 2011 CBC televised interview. See video and start at 3:27: ICC, Libyan Government at Odds over Saif al-Islam Trial.
SECOND: Did the Libyan Foreign Ministry exercise this diplomatic option? NO.
Was Libya informed they could exercise this right? Libya’s ICC defense team Matrix Chambers’ members Philippe Sands and Michelle Butler AND Payam Akhavan are bound by a Code of Ethics in their respective jurisdictions which enforces their code of conduct to provide complete advice that will not harm their client.
Did they provide this to Foreign Minister Abdel Aziz? IF SO, we have to ask why didn’t Mr. Abdel Aziz exercise Libya’s right under article 16 to approach the Security Council? It could have saved Libya from the threat of international sanctions, being vilified in international press and the exorbitant fees of the London law firms.
THIRD: Foreign Minister Abdel Aziz knew and dismissed but did not deny the topic of the ICC and the law firms that represent Libya. Libyan Foreign Minister Mohamed Abdel Aziz was questioned as a deputy foreign minister. On the 15th of June 2012 during the Libya Al Hurra’s show Window on the Transitional Government, Mohamed Abzayza presented these facts about Matrix Chambers and the ICC. Foreign Minister Abdel Aziz seemed to dismiss the issue by saying in essence that Matrix is an international firm with many members and what is of concern is what they submit to the court.
FOURTH: Libya could STILL CANCEL the investigation at the International Criminal Court. As the ICC has waived their right to jurisdiction of Abdulla Senussi, they ruled that he will receive a fair trial under the Libyan legal system. The Libyan Mission’s petition to the Security Council under Article 16 is thereby strengthened considerably.
Doughty Street Chambers: The law firm that the Libyan Government’s Litigation Office HIRED to represent the Libyan People at the ICC.
We would like to include this information of Doughty Street Chambers whose members Amal Alamuddin, John Jones and Wayne Jordash represent three DIFFERENT clients on BOTH sides of the issue at the International Criminal Court…Saif Gaddafi, Abdulla Senussi and the Government of Libya. SEE below.
Into the mix, we include the links to a series of three articles about Libya, Muammar and Saif Gaddafi written by their Doughty Street founding partner, Geoffrey Robertson. The excerpt from Geoffrey Robertson’s article, Why Libya Must Send Saif Gaddafi to the Hague outlines how he sees that “Saif has the making of an arguable defense.” It was published the day Saif was captured. Doughty Street Chamber’s John R.W.D. Jones is Saif’s ICC lawyer. HERE, HERE, and HERE.
Aside from publicly arguing the case for Saif’s defense, members of Doughty Street Chambers and Matrix Chambers represent BOTH sides of Libya’s ICC Case. As a result, Matrix and Doughty Street lawyers have filed briefs before the ICC and to both retain Saif Gaddafi & Abdulla Senussi on Libyan soil and to move them to the International Criminal Court in the Hague.
This chart demonstrates the scandal of the TWO law firms that the Libyan Foreign Ministry has hired to represent the Libyan People. Members of each law firm represent the opposing side at the ICC while simultaneously representing Libya. Members of Doughty Street Chambers, John R.W.D. Jones and Wayne Jordash simultaneously represent Saif Gaddafi and the Government of Libya. Members of Matrix Chambers, James Crawford, Michelle Butler and Ben Emmerson simultaneously represent the Government of Libya and Abdulla Senussi. And the Libyan people are represented Ahmed El-Gehani.
Amal Alamuddin, John R.W.D. Jones and Wayne Jordash are co-iLawyers for the iLawyer blog. These three lawyers simultaneously represents three DIFFERENT clients on BOTH sides of the Libyan ICC case.
Although on OPPOSITE sides in the dispute they are all members in the SAME law firm: Doughty Street Chambers. Amal Alamuddin represents Abdulla Senussi, John R.W.D. Jones represents Saif Gaddafi and Wayne Jordash represents the Government of Libya.
Interested in Libya’s ICC legal issues? Please consult our other articles; the lawyers and law firms that represent them:
Parts of this Op/ED article is reproduced in accordance with Section 107 of title 17 of the Copyright Law of the United States relating to fair-use and is for the purposes of criticism, comment, news reporting, teaching, scholarship, and research.