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Request to Disqualify the Prosecutor from Participating in the Case Against Mr ICC-01/11-01/11-133 03-05-2012 1/20 EO PT OA3 Original: English No.: ICC‐01/11‐01/11 Date: 3 May 2012 THE APPEALS CHAMBER Before: Judge Sang‐Hyun Song Judge Akua Kuenyehia Judge Erkki Kourula Judge Anita Ušacka Judge Sanji Mmasenono Monageng SITUATION IN LIBYA IN THE CASE OF THE PROSECUTOR v. SAIF AL‐ISLAM GADDAFI and ABDULLAH AL‐ SENUSSI Public With Public Annexes A to I Request to Disqualify the Prosecutor from Participating in the Case Against Mr. Saif Al Islam Gaddafi Source: Defence No. ICC‐01/11‐01/11 1/20 3 May 2012 ICC-01/11-01/11-133 03-05-2012 2/20 EO PT OA3 Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Mr. Luis Moreno‐Ocampo, Prosecutor Mr. Xavier‐Jean Keïta, Principal Counsel Ms. Fatou Bensouda, Deputy Prosecutor Ms. Melinda Taylor, Counsel Legal Representatives of the Victims Legal Representatives of the Applicants Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Ms. Silvana Arbia, Registrar Deputy Registrar Mr. Didier Daniel Preira, Deputy Registrar Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC‐01/11‐01/11 2/20 3 May 2012 ICC-01/11-01/11-133 03-05-2012 3/20 EO PT OA3 1. Introduction 1. Libya is currently asserting their right to prosecute Mr. Saif Al Islam Gaddafi. As demonstrated by the death and subsequent corporeal display of the bodies of Muammar and Mutassim Gaddafi – there are extremely virulent reactions in Libya towards the Gaddafi family, which can manifest themselves in violent acts. The inflammation of such sentiments is directly contrary to the need to ensure independent and impartial judicial processes, and to ensure adequate security to a member of this family, who is detained under the authority of a Libyan militia. 2. The Prosecutor was recently present on Libyan soil. The ICC has not been able to conduct outreach activities in Libya and as such, the presence of an ICC official in Libya is obviously significantly influential as concerns the perception of Libyans concerning the status of proceedings before the ICC and the role of the Prosecutor. 3. Notwithstanding the fact that the Defence for Mr. Gaddafi had recently raised issues concerning the need to be sensitive to the volatilities of a post-conflict situation, the Prosecutor utilised the occasion to refer to the fact that the Libyan authorities have ‘great’ evidence against Mr. Saif Al Islam Gaddafi, a strong admissibility challenge, and that he personally committed crimes against persons. 4. The comments follow earlier statements from the Prosecutor, which appear to predict the success of the Libyan admissibility challenge or otherwise advance the positions of the National Transitional Council (NTC), or which contain categorical conclusions regarding the culpability and credibility of Mr. Gaddafi. 5. The Prosecutor has also consistently conducted joint press conferences with Libyan authorities, during which the Libyan authorities have clearly announced their intention to try Mr. Gaddafi in Libya and not to surrender him to The Hague. However, at no point since the arrest of Mr. Gaddafi on 19 November 2011, has the Prosecutor referred to the outstanding obligation of the Libyan authorities to bring Mr. Gaddafi before a judge or to surrender him to the ICC. 6. Unlike some national systems in which the Prosecutor might exercise a more partisan role, Article 54(1) of the Rome Statute enjoins the ICC Prosecutor to act as an independent and impartial Minister of Justice, who is dedicated to establishing the truth, and respecting the rights of all persons under the Statute, including the defendant. No. ICC‐01/11‐01/11 3/20 3 May 2012 ICC-01/11-01/11-133 03-05-2012 4/20 EO PT OA3 7. Article 42(7) specifically tasks the Prosecutor with the obligation not to participate in any matter in which their impartiality might reasonably be doubted on any ground. Rule 34(1)(d) further specifies that the grounds for disqualification include the “expression of opinions, through the communications media, in writing or in public actions, that objectively, could affect the required impartiality of the person concerned”. 8. Article 42(8) invests the Defence with the right to request the disqualification of the Prosecutor on any grounds set out in Article 42. 9. In line with this article, the Defence for Mr. Saif Al Islam Gaddafi respectfully requests the Appeals Chamber to disqualify the Prosecutor from the current case due an objective appearance that the impartiality of the Prosecutor might reasonably be doubted. 10. In order to ensure that the integrity and appearance of fairness of the proceedings are not prejudiced pending the Appeals Chamber’s resolution of this application, the Defence further requests the Appeals Chamber to suspend the Prosecutor from all prosecutorial functions concerning the case in the interim. 2. Procedural History 11. After the issuance of an arrest warrant by the Pre-Trial Chamber against Mr. Saif Al Islam Gaddafi, the ICC Prosecutor was interviewed by Mr. Philippe Sands Q.C., who is now the senior counsel for the Libyan government in the proceedings before the ICC. According to the resultant article, the Prosecutor went through Prosecution evidence with Mr. Sands, such as video recordings of Mr. Saif Al Islam Gaddafi, and expressed several views concerning the criminal responsibility and credibility of Mr. Gaddafi.1 12. Mr. Gaddafi was arrested on 19 November 2012. 13. On 22 November 2011, the Prosecutor conducted a mission to Libya. During this mission, the Prosecutor participated in a joint press conference with the Minister of Justice on 23 November 2011, during which Minister of Justice announced that “the Libyan authorities would conduct the trial in Libya but would coordinate with the 1 P. Sands, ‘ The Accomplice’, Vanity Fair (online version) 22 August 2011, at p. 4, http://www.vanityfair.com/politics/features/2011/08/qaddafi-201108 (Annex A). No. ICC‐01/11‐01/11 4/20 3 May 2012 ICC-01/11-01/11-133 03-05-2012 5/20 EO PT OA3 ICC”.2 In a video of a press-conference in a Libya, the Prosecutor referred to Libya’s right to try Mr. Gaddafi in Libya, and stated that if they did so, the Court would not intervene.3 The Prosecutor also made several statements to reporters in Tripoli, which were interpreted as the Prosecutor supporting the right of Libya to try Mr. Gaddafi in Libya.4 14. On 25 November 2012, the Prosecutor filed submissions in which he noted inter alia, that the Libyan authorities had informed the Prosecution that they wished to try Mr. Gaddafi in Libya and had requested advice from the ICC.5 The Prosecutor had advised them inter alia, that the Statute provides for primacy of domestic jurisdictions, and as such, they could challenge the admissibility of the case.6 The Prosecutor stated that if Libya was successful, the ICC Prosecution would not monitor the subsequent domestic trial.7 Alternatively, the Libyan government could invoke Article 94 of the Statute and “the Libyan authorities might propose options to the Court in order to reach an agreement”.8 15. The Prosecutor further informed the Chamber that the NTC had transmitted a letter setting out their position directly to the ICC Prosecution, although it was addressed to the President of the Pre-Trial Chamber.9 The Prosecution translated this letter and transmitted it to the President of the Pre-Trial Chamber. 16. In this letter, the NTC informed the President of the Chamber that the Libyan judiciary had primacy to try Mr. Gaddafi and therefore the Court’s request for his arrest and surrender would be discussed with the Court and “the latter will be officially informed of the Council’s decision later.”10 17. In response to an order from the Chamber, on 23 January 2012, the NTC informed the Chamber that the NTC was not formally challenging the admissibility of the case at this point in time but was seeking to defer Mr. Gaddafi’s surrender under Article 94.11 2 ICC-01/11-01/11-31 at para. 12. 3 ICC-01/11-01/11-31, Annex F. 4 ‘Saif Al-Islam Could Be Tried in Libya’ Says ICC Prosecutor’, 22 November 2011, www.guardian.co.uk/world/2011/nov/22/saif-al-islam-gaddafi-trial-libya (Annex B). See also Annex D to ICC- 01/11-01/11-31. It can be presumed by virtue of the fact that the Prosecutor relied upon it in its submissions to the Pre-Trial Chamber that the Prosecutor does not dispute the accuracy of its reporting. 5 ICC-01/11-01/11-3, at paras. 5 and 6. 6 At para. 7. 7 At para. 7. 8 At para. 9. 9 At para. 13. 10 ICC-01/11-01/11-34-Anx 11 ICC-01/11-01/11-44-Anx1-Red. No. ICC‐01/11‐01/11 5/20 3 May 2012 ICC-01/11-01/11-133 03-05-2012 6/20 EO PT OA3 18. In his response, the Prosecutor took “note that Saif Al-Islam is in custody in Zintan; that arrangements are underway for his transfer to the Libyan authorities in Tripoli and also that the Libyan authorities commit to discuss with the Court, the timing of its pending judicial processes against him.”12 19. On 7 March 2012, the Pre-Trial Chamber rejected Libya’s request to postpone Mr.
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