ICC judges rule Saif Gaddafi case admissible, call for transfer to The Hague
Libya unsuccessfully challenged the admissibility of Gaddafi’s case at the ICC based on the principle of complementarity, which holds that the ICC does not replace national criminal justice systems and can only investigate and prosecute if the state concerned cannot or will not do so genuinely. In May 2014, the Appeals Chamber confirmed the admissibility of the Gaddafi case before the ICC. The Chamber concluded that pre-trial judges had not erred in finding in 2013 that Libya had not sufficiently proven that its national investigation covers the same case as the one before the ICC. The domestic charges included indiscriminate shelling, opening fire at demonstrators and engaging in acts of vandalism, looting, and killing.
Death sentence prompts outcry
On 28 July 2015, a Libyan court in Tripoli convicted Gaddafi, fellow ICC suspect Abdullah al-Senussi and seven other former government officials. Saif Gaddafi was sentenced to death. The trial and verdicts generated an international outcry over allegations of serious due process violations, including that: the militia (the Zintan Brigade) detaining Gaddafi refused to hand him over to Libyan authorities, held him for extended periods in isolation, interrogated him without counsel present in violation of Libyan law, and almost completely denied him access to pre-trial and trial proceedings.
In response to the verdict, the ICC prosecutor requested that pre-trial judges order Libya not to execute Gaddafi and to instead surrender him to the ICC to face charges of crimes against humanity. The ICC cannot itself impose the death penalty as a sentence, and customary international human rights law dictates that such a penalty is not available in instances where fair trial rights have not been observed. Coalition member the International Federation for Human Rights (FIDH), in addition to calling for Gaddafi’s surrender to the ICC, urged the Libyan Supreme Court to review the verdicts and sentences and the ICC to reconsider its inadmissibility decision in the Abdullah al-Senussi case.
ICC staff detained
On 7 June 2012, four ICC staff members were detained in Zintan, Libya, while undertaking a mission authorized by ICC judges and approved by the interim Libyan government to visit with Saif Gaddafi. The four were released on 2 July 2012.
In December 2014, the Court issued a finding of non-compliance by Libya with respect to the non-execution of requests for cooperation transmitted by the ICC. The Court found that Libya had failed to comply with two ICC requests: that Libya surrender Gaddafi to the ICC; and that Libya return to Gaddafi’s ICC defence team original documents that were seized by Libyan authorities during a 2012 consultation in relation to the case. The Court further decided to refer the matter to the UNSC for its assistance in removing obstacles to cooperation.