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English No. ICC-01/11-01/11 Date: 9 March 2020 the APPEALS CHAMBER Before

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English No. ICC-01/11-01/11 Date: 9 March 2020 the APPEALS CHAMBER Before ICC-01/11-01/11-695 09-03-2020 1/43 EO PT OA8 Original: English No. ICC-01/11-01/11 Date: 9 March 2020 THE APPEALS CHAMBER Before: Judge Chile Eboe-Osuji, Presiding Judge Howard Morrison Judge Piotr Hofmański Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa SITUATION IN LIBYA IN THE CASE OF THE PROSECUTOR v. SAIF AL-ISLAM GADDAFI Public Judgment on the appeal of Mr Saif Al-Islam Gaddafi against the decision of Pre-Trial Chamber I entitled ‘Decision on the “Admissibility Challenge by Dr. Saif Al- Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute”’ of 5 April 2019 No: ICC-01/11-01/11 OA8 ICC-01/11-01/11-695 09-03-2020 2/43 EO PT OA8 Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for Mr Saif Al-Islam Gaddafi Ms Fatou Bensouda, Prosecutor Mr Essa Faal Mr James Stewart Mr Aidan Ellis Ms Helen Brady The Office of Public Counsel for Victims States Representatives Ms Paolina Massidda The State of Libya Others United Nations Security Council Lawyers for Justice in Libya Redress Trust Libyan Cities and Tribes Supreme Council REGISTRY Registrar Mr Peter Lewis No: ICC-01/11-01/11 OA8 ICC-01/11-01/11-695 09-03-2020 3/43 EO PT OA8 The Appeals Chamber of the International Criminal Court, In the appeal of Mr Saif Al-Islam Gaddafi against the decision of Pre-Trial Chamber I entitled ‘Decision on the “Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute”’ of 5 April 2019 (ICC-01/11-01/11-662), After deliberation, Unanimously, Delivers the following JUDGMENT 1. The Prosecutor’s ‘Motion to Set Aside documents transmitted by the Libyan Cities and Tribes Supreme Council’ of 6 December 2019 (ICC- 01/11-01/11-688-Conf) is granted in part. Annexes III to VI of ICC-01/11- 01/11-685 are accepted, while confidential Annexes I and II of the same are rejected. 2. The ‘Decision on the “Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute”’, of 5 April 2019 (ICC-01/11-01/11-662), is confirmed. 3. The relevant party or participant shall file a public redacted version, request the reclassification as ‘public’, or alternatively, provide reasons as to why their confidential status should be maintained, of the following documents, by 16h00 on 30 March 2020: a. ICC-01/11-01/11-676-Conf; b. ICC-01/11-01/11-680-Conf; c. ICC-01/11-01/11-683-Conf and annexes I to XIII; d. ICC-01/11-01/11-685-Conf-AnxI and ICC-01/11-01/11-685-Conf- AnxII; e. ICC-01/11-01/11-688-Conf; and f. ICC-01/11-01/11-690-Conf. 1 ICC-01/11-01/11-695 09-03-2020 4/43 EO PT OA8 REASONS I. KEY FINDINGS 1. The Appeals Chamber considers that article 17(1)(c) of the Statute, read together with article 20(3) of the Statute, means that the decision issued by a national jurisdiction must be final before a case can be declared inadmissible on the basis of these provisions. II. INTRODUCTION 2. Counsel for Mr Saif Al-Islam Gaddafi has filed an appeal against a decision issued by Pre-Trial Chamber I, on 5 April 2019, dismissing his challenge to the admissibility of the case against him at the International Criminal Court (‘ICC’ or ‘Court’). 3. Mr Gaddafi’s challenge, and the instant appeal, revolves around: a) the status of criminal proceedings in Libya, which resulted in his conviction, following a trial by a court in Tripoli (‘Tripoli Court’), on 28 July 2015 (and the passing of a sentence of death), for crimes related to events in Libya around February 2011; and b) his claim that he was granted an amnesty in respect of the same crimes. Counsel for Mr Gaddafi argues that the Pre-Trial Chamber, in considering these two events, and in rejecting his challenge, erred in its interpretation of articles 17(1)(c) and 20(3) of the Statute when it found that the case against him remains admissible before the ICC. 4. Article 17(1)(c) of the Statute provides that the Court shall determine that a case is inadmissible where ‘[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3’. Article 20(3) of the Statute (the provision as a whole dealing with ‘ne bis in idem’) provides that ‘[n]o person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct’ unless the proceedings in the other court were ‘for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’, or otherwise were not conducted ‘independently or impartially’ or ‘were conducted in a manner which, in 2 ICC-01/11-01/11-695 09-03-2020 5/43 EO PT OA8 the circumstances, was inconsistent with an intent to bring the person concerned to justice’. 5. Counsel for Mr Gaddafi raises two grounds of appeal: Ground 1: The Pre-Trial Chamber erred in law in holding that articles 17(1)(c) and 20(3) of the Statute may only be satisfied where a judgment on the merits of a case has acquired res judicata effect; and Ground 2: The Pre-Trial Chamber erred in law and fact, and procedurally, by failing to determine that Law No. 6 of 2015 (‘Law No. 6’) was applied to Mr Gaddafi and that such application rendered his conviction final.1 6. Counsel for Mr Gaddafi also requests, with respect to the second ground of appeal, that the Appeals Chamber admit into the record, and consider on the merits, the contents of four additional documents dated February 2019, which concern the issuance of identification records for Mr Gaddafi by the Libyan Civil Registry Authority in Tripoli.2 7. It is argued on behalf of Mr Gaddafi that the errors alleged on appeal, ‘independently and cumulatively, materially affect the Impugned Decision in that, but for these errors, the [Pre-Trial Chamber] would have found that [the first element] of the four-step ne bis in idem admissibility evaluation was satisfied’.3 Counsel for Mr Gaddafi requests that the Appeals Chamber: (i) reverse, in relevant part, the Impugned Decision; (ii) determine that the four elements of the ne bis in idem evaluation are satisfied […]; and (iii) hold that [Mr Gaddafi’s] case before the ICC is inadmissible. In the alternative, if the Appeals Chamber declines to undertake the full four-step ne bis in idem evaluation, [Mr Gaddafi] requests the Appeals Chamber reverse the Impugned Decision and remand this matter to the Pre-Trial Chamber to further consider and issue a new decision on the Admissibility Challenge in line with the Appeals Chamber’s holdings and directions on the appeal sub judice.4 1 Defence Appeal Brief in support of its appeal against Pre-Trial Chamber I’s “Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute’”, 20 May 2019, ICC-01/11-01/11-669 (OA8) ( ‘Appeal Brief’), para. 7. 2 Appeal Brief, para. 10. 3 Appeal Brief, para. 8. 4 Appeal Brief, para. 11 (footnotes omitted). 3 ICC-01/11-01/11-695 09-03-2020 6/43 EO PT OA8 8. The Appeals Chamber will address Mr Gaddafi’s grounds of appeal in turn. III. PROCEDURAL HISTORY A. Background and proceedings before the Pre-Trial Chamber 9. Following the United Nations Security Council’s referral5 of the situation in Libya since 15 February 2011 to the Prosecutor of the Court, on 27 June 2011, the Pre-Trial Chamber issued a warrant of arrest for Mr Gaddafi for the crimes of murder, and persecution of civilians, as crimes against humanity within the meaning of article 7(1)(a) and (h) of the Statute.6 The allegations relate to an alleged attack, from 15 February 2011 to at least 28 February 2011, by Libyan Security Forces against the civilian population taking part in demonstrations against Muammar Gaddafi’s regime or those perceived to be dissidents. Mr Gaddafi is alleged to be criminally responsible for the commission of these crimes as an indirect co- perpetrator in light of, among other factors, his senior leadership role in the Libyan State apparatus and being part of the inner circle.7 10. On 4 July 2011, the Registrar filed a request to the State of Libya (‘Libya’) to arrest Mr Gaddafi and surrender him to the Court.8 By letter dated 23 November 2011, the National Transitional Council of Libya confirmed, to the Pre-Trial Chamber, the arrest of Mr Gaddafi on 19 November 2011 in Libya.9 11. The Pre-Trial Chamber, on 31 May 2013, dismissed a challenge by Libya to the admissibility of the case.10 This decision was later confirmed by the Appeals Chamber, on 21 May 2014.11 5 United Nations Security Council, Resolution 1970, 26 February 2011, S/RES/1970 (2011). 6 Warrant of Arrest for Saif Al-Islam Gaddafi, 27 June 2011, ICC-01/11-01/11-3 (the ‘Warrant of Arrest’).
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