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A Legal Opinion on Granting Amnesty – or Not – to Saif Gaddafi
Sophie van Leeuwen @Sophievleeuween ‘Correspondent RFI, France24 on Instagram_ “Saif #Gaddafi wants his ICC case to end based on double jeopardy, while waiting for amnesty in #Libya HERE HERE
This is the second part to our op/ed discussion in Arabic: رأي قانوني وافي في قرار العفو عن سيف القذافي
Highlights:
- There is NO evidence that the HoR’s General Amnesty Law exists. In fact, the evidence documents – under Libyan Law – it is not a valid law nor an amendment to an existing law.
- The General Amnesty Law was NEVER published via the Official Gazette – a requirement under Libya law to be considered a law.
- There is a General Amnesty Law – Law #35 of 2012 – that is an official Libyan Law which Articles (1), (2) & ( 3) will preclude Saif from being granted amnesty.
- Saif’s defense of ‘Double Jeopardy” is peculiar. When considering The International Criminal Court has ruled & upheld (Arabic) that the Libyan and the ICC cases are NOT the same case. That was confirmed twice.
- The Isolation Law is STILL a part of Libyan Law. The Isolation Law has NOT been repealed or revoked despite media reports to the contrary: BBC, The Anadolu Agency, ALL-AFRICA and Libya Herald. The erroneous coverage originated with inaccurate reports from HoR members. The 2015 vote was considered VOID as documented by another HoR member.
- The official HoR site does NOT appear to exist. http://www.libyan-parliament.org/
Zintan letter in response to MOJ letter on Saif Gaddafi’s release
Saif Gaddafi Drama
Over the last few weeks, we have witnessed controversy and drama about Saif. Was he released, his new lawyers present their strategy and simply, where is he? Other discussions centered on the legality of the decision of Colonel Ajmi Al Atiri, commander of the Zintan Brigade Abu-Bakr al-Siddiq Battalion who allegedly released Saif. Although denied by Zintan Council members, Mr. al-‘Atiri gave as a justification, the amnesty law issued by the HoR on 28 July 2015 and a questionable letter from the Minister of Justice of the former Internationally Recognized Government of Abdulla Thinni to release Saif Gaddafi pursuant to the request of the Gaddafi tribe. The letter is not questionable because of its unusual signature – as the Official MoJ Facebook site contains other official document with the same queer signature – rather that the letter is disputed on both sides to its provenance as demonstrated in the dueling Zintan & MoJ letters. Adding to the drama is the recent death of the Minister of Justice thus ending the absolute confirmation or denial of the authenticity of the letter.
The Gaddafi request & the MoJ letter refer to an amnesty law adopted by the HoR.
MOJ Letter on Saif Release letter
It is important to note with reference to the letter that – under Libyan law – the Libyan Justice Ministry and its Justice Minister has NO legal authority to release prisoners or intervene in the judicial court proceedings and/or penalties imposed by the courts. The Libyan Justice Ministry is a separate entity with no governing power over the judiciary process… appointing judges, or authoritative power over the correctional facilities and their prisoners.
Thus, the letter – If verified – is irrelevant. It would simply be a MoJ, in a government without international-recognition, overstepping his portfolio – as it pertains to Libyan law. One final point is that overstepping his portfolio seems to have been habitual action for this MoJ as noted in another article.
The GNA Response to the Saif Drama
A few days later the Libyan Government of National Accord “says Saif al-Islam has not benefited from any amnesty for his charges of crimes against humanity…. The government said the (amnesty) comments gave the impression that anyone who committed crimes under the deposed Gaddafi regime could escape punishment. “
‘Saif al-Islam Gaddafi ‘released’ under amnesty deal_ lawyer’ – Al Araby HERE
Saif’s New Legal Team
Coordinated – unwittingly or not – with ‘Atiri comments was Mr. Saif Gaddafi’s new international defense team which gave a press conference on 28 June followed up by interviews with Libyan and international media, to outline their legal defense for Client Saif. Participating in the interviews was Gaddafi legal team member Khalid Al Zaidi.
The strategy was revealed through his lawyers – armed with a power of attorney – to speak on his behalf – and that according to Afrigate News, ‘this is the first time the legal team is supervised and personally selected by Saif” has indicated that Saif accepts the Libyan trial charges and sentence and as according to Karim Khan QC, (1) “He’s been released from Zintan detention. The release, I’m told, was on 12 April – there was an order from the central government,” said Khan. “He’s in Libya, he’s in good health, he’s safe and he’s well” and (2) he “has already been tried and sentenced to death at home. Putting him on trial again in The Hague would be a violation of the principle of “double jeopardy”.”
Thus, in Saif’s team’s estimation the international arrest warrants should be dropped and under auspices of the 2015 General Amnesty law, Saif becomes a free man. From The New Arab:
“Saif al-Islam was released under an amnesty and in accordance with (Libyan) law,” his lawyer added. Saif al-Islam had been held since 2011 by a militia in Zintan.
He was sentenced to death in absentia by a court in Tripoli in July 2015 for involvement in the killing of protesters during the uprising that toppled his father. Human Rights Watch at the time said the trial was riddled with flaws amid widespread lawlessness, which the human rights watchdog said underm(in)ed the credibility of the judiciary in Libya.
Saif al-Islam is wanted by the International Criminal Court (ICC) in The Hague. In 2011, the court issued an arrest warrant on charges of crimes against humanity, murder and persecution.
Khan told France 24 he would file an application to make the ICC case inadmissable based on the principle of “double jeopardy”, arguing that his client has already been tried and sentenced by his home country.”
Double Jeopardy
The principle of double jeopardy is from Roman civil law Ne bis in idem “not twice in the same” means “A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense.”
Second prosecution for the same offense – we must remember – and we are sure Karim Khan QC knows – that the ICC has already ruled and upheld & in Arabic – that it is NOT the SAME OFFENSE – twice. That is the ICC ruled in 2013 and upheld in 2014 that the case in Libya is NOT the same case at The Hague.
In other words, not the same case. NO double jeopardy. ICC confirmed, twice.
To grasp the ICC’s decision that it was not the SAME case, we must to step back into why “Khan told France 24 he would file an application to make the ICC case inadmissible…”
The ICC’s Admissibility Regime: Complementarity
‘ICC Case Against Spy Chief Senussi Deemed Inadmissible I Just Security’ – HERE
The ICC case “inadmissible” means that case will not be heard at The ICC. Currently, the ICC has ruled that Saif case is “admissible” or will be heard before Chambers at the ICC which was again, ruled in 2013 & upheld in 2014. (Arabic)
That is the ICC judges or Chambers ruled and upheld under the standard derived from the Rome Statute, the founding document of the International Criminal Court that Saif must be tried – at the ICC – for the crimes he was charged with in the arrest warrant.
The ICC standard to determine where the case is tried – Libya or the ICC – is the rule of Complementarity. For analysis of complementarity, 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.
In her October 2013 article: “ICC Case Against Spy Chief Senussi Deemed Inadmissible” she simplified complementarity in “The ICC’s Admissibility Regime:
“Article 17 states that a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation.
This provision embodies the bedrock principle of complementarity, which dictates that the ICC should assert go forward with a case only where there are no domestic proceedings in a state with jurisdiction. The Court has adopted a two-step test for ruling on complementarity that 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?”
Are the cases the same? If so, is Libya “willing” & “able” to provide a fair trial.
Complementarity: Saif & Abdullah Senussi
Saif Gaddafi ICC Case Information Sheet
With Abdullah Senussi – the other ICC defendant – the prosecutor and Chambers answered YES to both questions. “That is ICC judges upheld an earlier decision approving a bid by Libya to prosecute Sanussi domestically.”
With Saif Gaddafi, both answers were NO. That is NO, Libya is not trying the SAME case and NO, and Libya is not “willing” and “able” to provide a fair trial. This decision was upheld on appeal.
This is from a ICC 21 May 2014 press release “ICC Appeals Chamber confirms the admissibility before the ICC of the case against Saif-Al-Islam Gaddafi” العربية Further information on this case is available: Gaddafi Case The Prosecutor v. Saif Al-Islam Gaddafi ICC-01/11-01/11″ The simplest notation comes from the ICC’s “Case Information Sheet Situation in Libya: The Prosecution v. Saif Al-Islam Gaddafi. Updated 13 June 2016”:
“ADMISSIBILITY CHALLENGE
On 1 May 2012, the Government of Libya challenged the admissibility of the case concerning Saif Al-Islam Gaddafi before Pre-Trial Chamber I. A Challenge to the admissibility of a case is based on the principle of complementarity which holds that the ICC does not replace national criminal justice systems; rather, it complements them. The ICC can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so.
On 31 May 2013, the Pre-Trial Chamber I rejected the challenge to the admissibility of the case against Saif Al-Islam Gaddafi. The Judges acknowledged Libya’s efforts to restore the rule of law. However, the Chamber concluded that Libya was UNABLE genuinely to carry out the prosecution of Mr Gaddafi and found that the evidence submitted was NOT sufficient to consider that the domestic and the ICC investigations cover the SAME case. On 21 May 2014, the ICC Appeals Chamber confirmed the decision of Pre-Trial Chamber I declaring the case against Saif Al-Islam Gaddafi admissible.
Saif Gaddafi ICC upheld press release Arabic 2014
Therefore, the ICC ruled and upheld & in ARABIC under the rule of complementarity that Saif is not tried for the SAME case. Thus, Mr. Khan’s claim of double jeopardy – same case – appears queer.
Much has been written by legal pundits on this subject of the principle of complementarity as applied to the Saif Gaddafi Case – as it applied to the Abdulla Senussi case with reference to the different conclusions. But, as Libya is NOT trying Saif for the SAME case, it is interesting all the legal pundits have yet to mention this. In fact, they are noticeably silent now with the Gaddafi legal team strategy of double jeopardy – same case defense.
Saif Gaddafi ICC 2013 Ruling
We provided a few of the many on this discussion:
Chatham House, OPINOJURIS.ORG. International Justice Monitor, Opiniojuris.org (13 articles) and few searches from the many articles from Justice in Conflict and Justice in Conflict 2
So their argument of double jeopardy – SAME CASE – appears to be just hype and/or just legal antics. We’ll see. The next facet of his team’s strategy is the General Amnesty Law.
“The General Amnesty Law”
Setting aside the double jeopardy issue, we thought we would shed some light on the statements of the defense team and the nature of what is called the “General Amnesty Law”. In conclusion, where does the ICC stand in the middle of this flood of conflicting opinions and information on its jurisdiction on prosecution Saif Gaddafi?
The Nature of the Amnesty Law adopted by the House of Representatives
Despite the continuing attempts to obtain a copy of this law published in the Official Gazette, it was to no avail. As such we can conclude it is not available for the Libyan people to review – as is their right – in either the Official Gazette or even unofficially placed on the now inactive HoR site. The significant point should be made – that under Libyan Law, it MUST be published in the Official Gazette to actually be a law – therefore it does not bode well for a potential constitutional case and could be successfully overturned.
‘المستشار خالد الزائدي _يشرح قانون العفو العام الليبي_ I بوابة أفريقيا الإخبارية’ – Al Zaidi www_afrigatenews HERE
As NOTHING is official – including the law, our source for this legal review, is what was published in articles on the internet and published statements made by Khalid Al Zaidi, Saif Gaddafi’s Libyan lawyer. For the General Amnesty part of the defense, we will concentrate on Mr. Al Zaidi, as he would be the logical member of the team to bear the burden to prove to the public – by submitting evidence – that the Libyan General Amnesty law is legally valid.
Mr. Zaidi gave an interview with Afrigate News on 3 August 2015 in which he gave a contradictory review of the General Amnesty law. Seemingly before Mr. Zaidi was appointed Saif’s lawyer Mr. Al Zaidi said “in fact what was discussed in the HoR during the voting on the new general amnesty law is just a set of proposals, including a draft that was posted on social media pages that the amnesty law is valid since the issuance of law 35/2012″.
“A Set of Proposals, including a Draft…”
In 2015 Khalid Al Zaidi revealed what was voted on by the HoR was only a “set of proposals and draft” which clearly does not constitute a formal written law that is “submitted through the Constitutional and Legislative Committee in accordance with the rules of procedure”. We will soon learn from the example of Isolation law, this is enough to invalidate or void the legislative vote based on errors in procedures. Mr. Al Zaidi concluded his interview by saying “What had already been voted on and adopted is to amend article 1 (1) of law 35/2012”. (We will get back to Article 1(1) of the law.)
Mr. Al Zaidi referred to is The General Amnesty Law #35 of 2012 adopted by the National Transitional Council. Mr. Al Zaidi referred to is Article 1 (1) of law 35/2012 which provided that the provisions of the amnesty is not applicable to “crimes of the wife of Muammar Gaddafi Muhammad Abdel Salam Abu Minyar and his sons and daughters – natural or adopted and kinship and associates “that is mentioned in this article will not pardoned”. Our PDF copy: The General Amnesty Law of 2012 302-Law No. (35) of 2012
In other words, the amnesty will not apply to Muammar Gaddafi’s wife, daughters (natural and adopted), sons, his kin and their associates.
In other, other words the Amnesty law will NOT apply to Saif, son of Muammar.
The General Amnesty Law #35 of 2012
General Amnesty Law #35 of 2012 (page 1) HERE
General Amnesty Law #35 of 2012 (page 2) HERE
General Amnesty Law #35 of 2012 (page 3) HERE
On That Elusive “General Amnesty Law of 2015″
Where can Libyans officially review ALL HoR Legislation?
Applicable to this discussion is a short background of the Tobruk parliament with respect to their legislation and specifically, concerning the HoR’s lack of formalities or procedures of adopting or amending laws. A review of the places where Libyans can review their legislative laws notes that any law or amendment – including the General Amnesty Law – as per Libyan Law must be published in the Official Gazette. The Official Gazette is located on the Ministry of Justice site in Tripoli. The Official Gazette website.
The Official Gazette – Tobruk
When the Tobruk HoR relocated to Tobruk, one would assume that an official Gazette would be established given the importance of a Official Gazette for a parliament. In that ANY law or amendment is NOT VALID until it is officially published in a Libyan Official Gazette. Was an Official Gazette linked to the HoR established and located on the Thinni Government Ministry of Justice site? No, this is not the case.
Ministry of Justice
When looking for Tobruk’s Official Gazette in the Ministry of Justice official site, it is merely a Facebook site which was last updated 12 November 2015… 8 month ago. Links are inactive and there is no official Gazette link. On review of the official MoJ site –a Facebook site, its posts on either side of the 28 July 2015 date– we didn’t notice any mention of the General Amnesty Law. Post on 25 August 2015 seems to skip past to Post 31 August 2015.
The Official HoR website
The official HoR website home page does not exist: http://www.libyan-parliament.org/ As we were checking the facts on this article we tested the link to the HoR site. It no longer exists. As a result there is no official (Official Gazette) or unofficial (HoR site) record of any HoR legislation. As of publishing, Libya is left with a Facebook connection to their legislators or vice versa. And legislation-by-Facebook is not legal at least in Libya.
When one’s Parliament doesn’t feel Transparency is essential.
Therefore, we can conclude from the non-existent Official HoR site to the inconsistent, non-updated Ministry of Justice to the nonexistent (Tobruk) Official Gazette of the HoR, there is no official place to review the General Amnesty Law NOR even a mention of the General Amnesty Law.
As there is no OFFICIAL place for Libyans to review the laws the HoR have legislated on their behalf – as Mr. Al Zaidi mentioned, Libyans are forced to resort to social media.
To discuss the HoR lack of formalities or procedures the example of the cancellation of the Isolation law is applicable. Like The General Amnesty law, NOTHING is official about the Isolation law. Again, without The Official Gazette to consult, media reports are what Libyans have to as reference.
The Precedent of the Isolation Law: HoR Hype, Not Legislation
As per media reports including BBC, The Anadolu Agency, ALL-AFRICA and Libya Herald it was widely reported that the HoR repealed the Isolation Law. Actually, despite the international media reports, the law has not been revoked or repealed so says an HoR MP in an interview with Al Wasat in which he documented – in detail – the events leading up to the 2 February 2015 vote that was consider void. And yet…
Three HoR MPs provided inaccurate assessment of the vote to the international media:
– ‘Libya Repeals Political Isolation Law allAfrica_com
ALL-AFRICA 2 February 2015 report “Libya Repeals Political Isolation Law”:
“House of Representatives spokesperson Farj Buhashem said the legislature opted for cancelling the political isolation law in full following a month-long debate.”An integrity and patriotism commission had been formed and excluded many symbols of the former regime,” Buhashem told akhbarlibya24.com. “When the state is built with all of its institutions, those who committed crimes against the Libyan people will be punished and prevented from taking part in politics.” “Whoever is proven innocent at courts will be allowed to take part in building the state,” he confirmed. “As to the members of Kadhafi family, when the state is built, they will be prosecuted and demanded to be repatriated to Libya, and they will be brought to court to be held to account for what they have done against this society.”
‘Libya revokes bill BBC News’
BBC 2 February 2015 report “Libya revokes bill which banned Gaddafi-era officials from office”:
Libya’s internationally recognised parliament has revoked a controversial law which banned Gaddafi-era officials from taking part in politics… “We voted to cancel the political isolation law – it’s done,” one MP, Ibrahim Alzgheid, told the BBC.
Libya parliament revokes -Anadolu
ANADOLU AGENCY 5 February 2015 report ”Libya parliament revokes ‘political isolation’ law”:
The House of Representatives (Libya’s parliament) on Monday revoked a law that had banned Gaddafi-era officials from participating in politics for a ten-year period. “Parliament has revoked the Political Isolation Law,” MP Tareq al-Garrouchi told The Anadolu Agency. “All Libyans are equal. No one should be deprived of the right to practice politics except those who have been found guilty [of wrongdoing],” he said.
Ibrahim Alzgheid, “MP Tareq al-Garrouchi and House of Representatives spokesperson Farj Buhashem appear to be inaccurate. The Isolation Law was NOT revoked or repealed.
Abdusalem Nasea, Constitutional Committee (HoR) 1 – ‘نصية_ إلغاء «العزل السياسي» باطل إجرائيًا I بوابة الوسط’ – Al Wasat
The Isolation Law:
The 2 February 2015 Vote to Repeal
Like the General Amnesty law – the Isolation law repeal was not officially published. What we have is a number of interviews including the above AND the published more authoritative interview with Al Wasat of an MP who actually detailed of events leading up vote on the law. His conclusion: the 2 February 2015 vote was void for two reasons. The Al Wasat 8 February 2015 article “Political Isolation (vote) is void procedurally” with Abdusalem Nasea:
“In an interview with Abdusalem Nasea, a member of the constitutional committee House of Representatives (HoR) published by Al Wasat on 8 February 2015 on the Isolation law, Mr. Nasea stated that HoR’s decision to cancel Isolation Law is void not cancelled due to violation of legal procedures. Mr. Nasea also explained that what was discussed in the Parliament was an amendment to the Isolation law not a cancellation.
-Abdusalem Nasea, a member of the Constitutional Committee (HoR) – ‘نصية_ إلغاء «العزل السياسي» باطل إجرائيًا I بوابة الوسط’ Al Wasat
Mr. Nasea added that the parliament session, which was held on Monday 2 February 2015, which was the vote on the political isolation law, was attended by 101 members, and thus achieves a quorum of the meeting in accordance with the rules of procedure. Out of the 101 member, only 62 members voted for the amendment of the law. He also emphasized the fact that the abolition of political isolation law is void for two reasons: first, the draft law to cancel the Isolation Law was not submitted through the Constitutional and Legislative Committee in accordance with the rules of procedure, and secondly: that the amendment to the political isolation law or cancellation needs to be 101 votes according to the fifth constitutional amendment to the declaration.”
According to Mr. Nasea the vote was void for two reasons: (1) the draft law to cancel the Isolation Law was not submitted through the Constitutional and Legislative Committee in accordance with the rules of procedure, and (2) that the amendment to the political isolation law or cancellation needs to be 101 votes… they only had 62.
The Isolation Law & The General Amnesty Law
As the Isolation Law was never published, we must assume Mr. Nasea account is correct. The reason to document the Isolation law is to show the shocking, coordinated effort and documented modus operandi of the HoR members – if in the vote – seemingly twisted the voting results to the international press. Not in a valid amendment or repeal and yet, they provided inaccurate information on the legislation. Can we assume the Isolation Law debacle is indicative of the General Amnesty law? Neither were officially published.
We can conclude that (1) the HoR has no official place to publish their legislation and (2) HoR MPs seemingly provided the press with inaccurate reports on legislation. How about their meeting in quorums?
Seham Sergawa HoR MP ‘سهام سرقيوة – Timeline Facebook’ HERE
Quorum from a HoR MP:
An April 2016 Accounting
As of 7 April 2016, in the 2½ year of the HoR existence, they have met in Quorum only 4 times.
According to outspoken Seham Sergawa, a Libyan HoR MP, the “Internationally Recognized” Parliament-HoR ONLY “met with quorum 4 times” during its mandate and extension over 2½ years.
So aside of not providing the Libyan citizens – their constituents – a place to review legislation passed in their name (Official Gazette), the HoR did their job as legislators (attended in correct number to vote) only 4 times in 2+ years. We couldn’t help but note that these same MPs will be rewarded by the UN-drafted agreement with another 1 to 2 years of service… with pay and benefits.
Those 4 times the HoR met in quorum: Our translation: 7 April 2016 Facebook post:
“Do you know that the Parliament met with quorum only four times:
FIRST:
To decide the salaries of the members
SECOND:
To appoint General Khalifa Heftar as the General Commander
THIRD:
To support the air bombing of Tripoli by the Egyptian & Emirati Air Force
FOURTH:
To extended the period of the Parliament”
(1) THEIR salaries, (2) extending THEIR mandate, (3) appointing General Heftar and (4) support the international bombing of their OWN country. These 4 issues were that they attend to reach the correct number to vote – Quorum.
Notice that NOTHING was voted on to alleviate the suffering of THEIR constituents.
OR – that the General Amnesty Law was NOT mentioned in those 4 quorums.
The Official Gazette, The Isolation Law and Met in Quorum
Mr. Al Zaidi noted “voted on and adopted” on “proposals and drafts”. As one knows, for the HoR to vote on adoption or amendment to a law – the HoR must have quorum. Our question is, given what HoR MP Sergawa posted – that within the legislation of the 4 quorums, there is no mention of the Amnesty Law – how can we consider the 28 July 2015 session – a valid amendment vote with quorum? Again, the HoR provided no official record of the vote – we are left with unofficial published press reports.
Unofficial published press reports such as the NON-repeal of the Isolation Law? With the documented example where HoR MPs provide inaccurate information the international press gives us qualified license to question the unofficial published press reports of The General Amnesty Law.
Further, as Mr. Zaidi stated that the 28 July 2015 session of (“voted on and adopted” on “proposals and drafts”) did not seem to follow the rule of “submitted through the Constitutional and Legislative Committee in accordance with the rules of procedure” which we know from the Isolation Law repeal vote – can render a vote void just for this reason.
Therefore, given all of this evidence, we can determine NOTHING is available officially for the Libyan people to conclude that the HoR’s so-named “General Amnesty Law of 2015″ is a valid law with a valid amendment.
As such there is a strong case that so-named amnesty law or amendment of 2015 will be declared unconstitutional upon appeal to the Supreme Court.
There is Law #35 of 2012
As there is NOTHING to prove that there is a General Amnesty law of 2015 – what Libyans do have is the Law #35 of 2012 which was adopted by the National Transitional Council. However, under Article 1(1) of the said law the Muammar Gaddafi’s wife, children and assistants were excluded and not covered by general amnesty.
Once again, Saif will NOT benefit as he is excluded from the Amnesty.
Before we get into legality of the decision to release Saif we must examine the charges leveled at Saif Gaddafi by the Libyan Prosecution Office as well as the International Criminal Court.
– ‘الزايدي_ الجنايات الدولية ليست مختصة بالنظر في قضية سيف الإسلام القذافي I Libya 24 – ليبيا 24’ – www_libya24_tv_news_44168 HERE
SAIF Gaddafi and the Libyan Judiciary
The Libyan prosecution charged Saif and the others with several offenses committed during the 17 February 2011 revolution including participation in the killing of Libyan protestors, incitement to murder and genocide.
In an interview on 27 June 2016 with Libya 24 TV channel, Saif’s lawyer Khaled Al Zaidi said, “the International Criminal Court has no jurisdiction to hear the case against my client, because he was tried before a Libyan court, and therefore, he cannot be tried again because the same defendant cannot be tried for the same charges twice, and this is covered by the Rome Statute and is confirmed by international agreements”.
In fact, Mr. Zaidi stated a wrong, non-debatable conclusion. Apparently, Mr. Zaidi either – did not read the list of charges by the ICC, or he just ignored its existence. As we mentioned earlier, the ICC ruled and upheld (Arabic) that the charges filed by the Libyan prosecutors against Saif Gaddafi are not the same charges raised by the ICC.
Double Jeopardy is not an Absolute Principle
As for the principal of “Double Jeopardy”, this is not an absolute principle, meaning incontestable, especially in Europe. There are exceptions. For instance, Protocol No. 7 Article (4) of the European Convention on Human Rights states where the person may be tried for the same crime if (1) “if there is evidence of new or newly discovered facts” emerges to incriminate the defendant or (2) the first court sessions violated the various procedural rules. Our PDF copy: European Convention on Human Rights or ECHR PDF link: (Page 43-44)
ARTICLE 4
Right not to be tried or punished twice
- No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
- The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
It is important to note that the DIFFERENCE IN THE NATURE of crimes between the ICC and Libyan prosecutors cases has been the basis for the ICC demand to hand over Saif. This means demanding Saif to stand trial before the ICC after being tried and sentenced in Libya does not amount to “double jeopardy”.
Saif will not be tried twice for the same crimes – rather, he will have two trials for different crimes.
Saif Gaddafi and the International Criminal Court
Saif Gaddafi ICC Case Information Sheet HERE
According to the Pre-Trial Chamber I, and as stated in Saif Gaddafi’s case information sheet issued by the ICC on 13 June 2016, there are reasonable grounds to believe that:
- Although not having an official position, Saif Al-Islam Gaddafi is Muammar Gaddafi’s unspoken successor and the most influential person within his inner circle and, as such, he exercised control over crucial parts of the State apparatus, including finances and logistics and had the powers of a de facto Prime Minister;
- Muammar Gaddafi, in coordination with his inner circle, including Saif Al-Islam Gaddafi, conceived a plan to deter and quell, by all means, the civilian demonstrations against the regime, and that both of them made an essential contribution to implement that plan.
Saif Gaddafi Case Information Sheet Page 2 HERE
Saif Gaddafi Case Information sheet Page 1 HERE
Our PDF copy: Saif Gaddafi Case Information Sheet
Charges
Until today the charges against Saif Gaddafi by the International Criminal Court as decided by the Pre-Trial Chamber I that there are reasonable grounds to believe that, under article 25(3)(a) of the Rome Statute, Saif Al-Islam Gaddafi is criminally responsible as indirect co-perpetrator for two counts of crimes against humanity:
- Murder, within the meaning of article 7(1)(a) of the Statute; and
- Persecution, within the meaning of article 7(1) (h) of the Statute.
Murder is mentioned in Article (7) (1) (a) of the Elements of Crimes of Rome
Statute, which is a crime against humanity and its elements are:
(1) the perpetrator killed one or more persons,
(2) the conduct was committed as part of a widespread or systematic attack directed against a civilian population and;
(3) the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.
Persecution, as a crime against humanity, is defined in (7) (1) (h) of the Elements of Crimes of Rome Statute and its elements are:
- The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.
- The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
- Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.
- The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.
- The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
- The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
Our PDF copy: Rome Statute Elements Of Crimes
The Significance of the Elements of Crimes Against Humanity
Therefore, the elements of crimes against humanity raised against Saif Gaddafi by the ICC are different from those crimes charged by the Libyan court. The crime of “persecution” – as defined in the Elements of Crimes of the Rome Statute, is NOT included in the charges by the Libyan judiciary against Saif.
Thus, different crimes, different trial is NOT double jeopardy. Moreover, the ICC is entitled to Saif Gaddafi to stand trial at the Hague of the different charges of crimes against humanity.
In other words, Saif will be tried at the ICC after his Libyan trial.
The General Amnesty Law of 2012 & 2015: Articles (1), (2) & (3)
‘مجلس النواب يقر قانون ا_’ – www_marsad_ly HERE
A Mr. Al Zaidi noted in his 2015 interview: “What had already been voted on and adopted is to amend article 1 (1) of law 35/2012”.
Article 1 (1) of law #35/2012” is the part that excludes the Gaddafi family.
Contrary to media hype, the General Amnesty law was never a blanket get-out-of-jail-free-card.
As such, Mr. Al Zaidi either failed to read the law or just failed to consider the other published articles of the Amnesty law#35 of 2012.
There are 10 more…
Even if we assume the HoR legally and fully performed all the formal requirements of voting in quorum and publishing the amendment to Article 1 (1) in Official Gazette, AND Saif jumps past the hurdle of Article (1) -Saif has a few more hurdles to clear to get to the Amnesty goal post … namely, Article (2) and Article (3).
Article (3)
AND we assume this unofficial published report is valid, Article (3) of the “amnesty law of 2015” states that the General Amnesty law IS NOT applicable to crimes of terrorism, importing drugs, rape, indecent assault by force and murder, abduction, enforced disappearance, torture, corruption offences and “Jaraim Al hudud” (crimes under Islamic criminal law such as theft, adultery, false accusations, public intoxication, highway robbery…).
In other words, those who allegedly committed crimes listed in Article 3 are ineligible to be granted amnesty as the law does not apply to them.
The Libyan prosecutor have charged and convicted Saif of some of the crimes mentioned above in Article 3. Can one assume that the evidenced used by the Libyan Prosecutors included as documented in videos (standing on a tank) that Saif Gaddafi encouraged his soldiers to commit a number of crimes mentioned such the killing and elimination of his opponents? As Article (3) will be applicable to Saif, he will not be granted the amnesty.
As such Saif is ineligible to be granted amnesty under Article (3) restrictions.
There is another consideration it seems Mr. Al Zaidi failed to consider…
Article 2: Financial Charges
If we assume that Saif jumped past the Article (3) hurdle and Libyan authorities grant him amnesty, Saif is still restricted by and must meet the requirements of Article (2) to receive Amnesty.
Article (2) stipulates that Amnesty for murder crimes is subject to the non-objection or approval of the kin of the deceased or reaching a settlement with the victims.
Therefore, Saif Gaddafi must get permission – NON-OBJECTION – to his amnesty from the kin of ALL – that is EVERYONE – who was murdered based on HIS orders – as he was charged and convicted – by his soldiers. We note that the victims’ numbers could reach into the thousands or tens of thousands.
IF just ONE of the kin refuses to grant non-objection to his amnesty – then The General Amnesty Law is NOT applicable to Saif. And his only recourse would be to file for appeal of his Libyan death sentence.
New Charges
Moreover, the Libyan prosecutor is still legally entitled to file new charges of financial corruption against Saif Gaddafi, since no financial charges have been filed. Again, Article (2) of the Amnesty Law requires that to be eligible for amnesty, the accused must return the money subject of the financial corruption crimes.
By filling new charges of financial corruption, Saif Gaddafi will not be entitled to claim “double jeopardy” since it will be the first trial for such charges.
Those Insurmountable Requirements:
Under Article (2) permission of ALL of the kin of ALL of the victims are required for his amnesty AND financial charges require Saif to pay ALL the money back.
We consider obtaining permissions from ALL the victims’ relatives and returning ALL the stolen money as two nearly insurmountable requirements for Saif Gaddafi to perform.
Once again, the General Amnesty Law will not be applicable to Saif Gaddafi.
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[…] individuals accused of crimes under Colonel Gaddafi’s regime. However, this bill specifically precluded amnesty for Colonel Gaddafi’s relatives, so regardless of what degree of legality it had, it […]