Tuesday, August 28, 2012

ICC Defense Responds To The Libyan Authorities' Demand To Hold Saif Gaddafi's Trial In Libya

ICC Defense Respond To The Libyan Authorities’ Demand To Hold Saif Gaddafi’s Trial In Libya

Posted on August 25, 2012 by Alexandra Valiente

Urgent Action: Viva Libya Saif Al Islam Gaddafi File And Appeal

On July 31, 2012, Mr. Xavier-Jean Keïta, Principal Counsel and Ms. Melinda Taylor, Counsel, submitted an application to the court requesting that Libya’s request to try Saif Al Islam Gaddafi in Libya be denied.

The 92 page document opened with unsigned statements from Saif Al Islam Gaddafi, where he outlined the gravity of his plight.

In an earlier article I described the process and challenges of the case, emphasizing the following critical facts:
•Regarding political prisoners, international laws are clear and concise. There is no margin for error or misinterpretation regarding their enactment.
•When the International Criminal Court demands the issuance of arrest warrants (based on a UNSC referral), it has a responsibility to ensure that the individuals subject to the warrant are lawfully protected from harm, granted a fair trial and not executed. This is especially critical in Libya, where the present regime is incapable of conducting “fair trials” and the country, mired in a state of utter chaos, is subject to militia rule.
•The ICC have actively participated in violating international laws and norms with regards to the protection and treatment of political prisoners.
•The former ICC prosecutor, Luis Moreno-Ocampo, stepped beyond professional and ethical boundaries when he entered into secret negotiations with the NTC and the Zintan militia, while denying he was trying to influence the outcome of Saif’s case.
•While he (Luis Moreno-Ocampo) was engaged in these secret meetings, it was known that Saif Gaddafi was subjected to torture, denied medical treatment for his injuries, denied legal counsel of his choice, denied access to family and friends he trusts who could act on his behalf to appoint legal counsel.

In addition to the above, “Ocampo “gathered evidence of fault” against Saif Gaddafi in a few weeks without going to the place where the alleged crimes were committed. In other cases investigations lasted for years (7 years in the case of Cote d’Ivoire). Now Ocampo’s statements for the media fully coincide with the position of the Libyan authorities.” (Alexander Mezyaev)

Today the ICC published a response from Mr. Xavier-Jean Keïta and Ms. Melinda Taylor that was submitted on August 21, 2012:


“1. On 30 July 2012, Counsel for Libya filed a request for a Status Conference, and an extension of time to file their reply concerning the admissibility challenge. Counsel for Libya sought to justify the latter by reference, inter alia, to the inability of Counsel to obtain instructions during the period of Ramadan, and pending the appointment of a new Minister of Justice, and Prosecutor-General.

2. In a request to reply to the Defence and Registry submissions on this point, Counsel for Libya once again averred to the Chamber that Counsel for Libya were unable to obtain instructions in relation to either the allegations concerning the alleged misconduct of the Defence, or the admissibility of the case. Counsel for Libya also heavily implied that there was a lacuna concerning the existence of a prosecution team, with the authority to instruct Counsel on such matters.

3. On 9 August 2012, the Pre-Trial Chamber suspended the deadline concerning Libya’s reply to the admissibility challenge due to “the alleged inability of counsel to obtain instructions in the absence of a Minister of Justice”.

3. On 9 August 2012, the Pre-Trial Chamber suspended the deadline concerning Libya’s reply to the admissibility challenge due to “the alleged inability of counsel to obtain instructions in the absence of a Minister of Justice”.

4. On 14 August 2012, the Defence for Mr. Saif Al Islam Gaddafi respectfully requested the Pre-Trial Chamber to shorten the deadline for the reply, or in the alternative, suspend the operation of Article 95 (the Request). The Defence referred to the fact that there was no du jure or de facto impediment as concerns the ability of either the incumbent Minister of Justice, or Prosecutor-General to instruct Counsel for Libya in relation to the reply to the admissibility challenge.

5. On 18 August 2012, at a time when Counsel for Libya had informed the Pre-Trial Chamber that there were no government officials capable of providing instructions concerning the case, an official for the Prosecutor-General provided clear and detailed information concerning the intention of the Libyan authorities regarding the progress of the domestic proceedings, and the admissibility challenge before the ICC.

6. For example, the official addressed the following issues, which are directly relevant to a putative reply to the admissibility challenge:”

They cite media reports that Saif Al Islam Gaddafi is to be tried in Libya in September.

“1 ICC-01/11-01/11-192
2 ICC-01/11-01/11-199, 9 August 2012, at paras. 4 and 13.
3 See for example, para 8.
4 ICC-01/11-01/11-200.
5 ICC-01/11-01/11-201.
6 N. Meo, ‘ Libya: Saif Gaddafi to go on trial next month’ Telegraph 18 August 2012, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/9484459/Libya-Saif-Gaddafi-to-go-ontrial-next-month.html”

They asked the court to consider the fact that the Libyan authorities will not provide accurate information regarding:
•1- The location of the trial.
•2- The penalty that will be imposed.
•3- The fact that Saif has no legal counsel in Libya and has not been granted the right to choose who will represent him.
•4- The unwillingness to protect witnesses who would like to testify on behalf of Saif.
•5- The exact date that Libya is seeking to set for the commencement of the trial.
•6- The specific items that the “prosecution” intends to submit as evidence against Saif.

The defense challenged Libya’s intentions when they announced to the media that, “now Libya’s prosecutor has made clear that the ICC will play no role in the trial. The court’s relationship with Libya was poisoned after four of its personnel were detained for alleged spying during a visit to Saif.” (http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/9484459/Libya-Saif-Gaddafi-to-go-ontrial-next-month.html)

They accused the Libyan authorities of mounting “a public campaign to preemptively justify their non-cooperation with any future admissibility ruling from the ICC. In particular, the Interior Minister, who continues to exercise his functions and authority to speak on behalf of the Libyan government, has resorted to litigation by journalism rather than judiciary, using the press as a platform to publicly malign the credibility of the ICC Defence (and by association, the ICC).”

They highlighted the irregularities in the statements and actions of the Libyan authorities:

“Whereas two weeks ago, the Libyan authorities asserted that they had concerns that the Defence wished to assassinate or poison Mr. Gaddafi with the interpreter’s swatch watch, the Interior Minister now alleges that the Defence attempted to assist Mr. Gaddafi escape by providing him with “drawings showing places and times in Zintan”. The Interior Minister further asserted that the ICC has not “ denied the spying claims”.”

They addressed the credibility of all statements made by the Libyan authorities and reminded the court of their obligation under international law, not to permit the continued abuse of court proceedings.

“It would be an abuse of the court proceedings to use the admissibility reply as a vehicle for mounting a distinct admissibility challenge based on new circumstances, proposals, and allegations. To do so would be contrary to the clear Statutory injunction that States may only challenge admissibility once, as of right. It would also unfairly deprive the Defence, Prosecution, and OPCV of the ability to be heard on these new details and proposals.

The law requires certainty and specificity, and Mr. Gaddafi has a right to know the forum of his trial as soon as possible. Accordingly, in the absence of any legal or practical impediment to the immediate filing of a reply to the admissibility challenge, the Defence respectfully reiterates its request for the Honourable Pre-Trial Chamber to:

i. order Counsel for Libya to either file their reply to the admissibility challenge within four days of the issuance of the decision on this request, or waive their right to file such a reply; or,

ii. in the alternative, declare that Article 95 is no longer in effect during the current suspension of the admissibility proceedings, and order the Libyan authorities to immediately surrender Mr. Gaddafi to the custody of the ICC.“

The Libyan authorities are attempting to confuse and deceive the public when Taha Naser Bara announces that Saif’s trial will be held in Zintan in September, while Deputy Prime Minister Mustafa Abushagur continues to deny that there are any definitive plans at this time regarding Saif’s trial.

It is my hope that the ICC will act on this request and have Saif transferred to an ICC facility where he is safe from the murderous reach of the current regime and has a chance of receiving a “fair trial” where his defense can present evidence of his innocence and witnesses can testify on his behalf without fear of imprisonment or assassination.

The ICC is obligated under its own laws to protect those under its jurisdiction from irreparable harm.

As the ICC issued the arrest warrant for Saif Al Islam, (Refer to the original arrest warrant; Jurisdiction – F – 1 – 50) he is under their jurisdiction and is entitled to their intervention and the full protection of all of his human rights.

I encourage activists and human rights advocates to support Saif by demanding his immediate release, even if it is into the hands of the ICC.

If he is to survive he must be removed from Libya promptly.
•Urgent Action: Viva Libya Saif Al Islam Gaddafi File And Appeal
•ICC Officials, “There Is No Chance Saif Al Islam Gaddafi Will Have A Fair Trial”.
•Saif Al-Islam Gaddafi’s Right To Fair Trial In Libya ‘Irrevocably Prejudiced’

© Copyright 2012 by Libya 360° and Viva Libya!. Republication is strictly forbidden. You are however permitted, encouraged and welcome to post the link to the original. On behalf of Libya’s political prisoners, we thank you for your support and cooperation.

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