Amicus, the ICC and the Case Against Saif Al-Islam Gaddafi

Mishana Hosseinioun and Aisha Gaddafi separately filed motions seeking permission to submit amicus curiae observations to the Pre-Trial Chamber hearing the case before the International Criminal Court (ICC) against Saif Al-Islam Gaddafi. Ms. Hosseinioun requested permission to contact Mr. Gaddafi to assist him in the appointment of legal counsel while his sister requested permission to make “specific” observations to assist the Chamber in “determining whether the Libyan authorities truly desire to provide” the accused with “effective legal representation or to afford him a fair trial.”

When considering the motions, the Pre-Trial Chamber considered that Rule 103 allows amicus curiae observations that are “both desirable and appropriate for the proper determination of the case.” The Chamber then considered that the requests effectively sought “the Chamber’s permission to contact Saif Gaddafi and give him access to what they deem to be appropriate legal advice”. The Pre-Trial Chamber therefore held that the requests fell outside the scope of the Rule 103. As the requests did not comply with the reasoning of the rule, they were denied.[1]

Ms. Hosseinioun filed an appeal of the Pre-Trial Chamber’s decision denying her motion with the Appeals Chamber on 7 February 2012, five days after her motion was denied.[2] She also filed a motion seeking leave to appeal the decision denying her Rule 103 motion with the Pre-Trial Chamber.[3] This blog post concerns only the direct appeal to the Appeals Chamber.

Ms. Hosseinioun’s direct appeal was filed pursuant to Article 82(1)(a) and argues that she is a “party” to the proceeding and that the decision denying her application to submit amicus observations was one “with respect to jurisdiction or admissibility.”[4] Her argument that she should be considered a “party” is based on the fact that if she is not, there will be no right of appeal from the denial of her Rule 103 application.[5] Her argument that the application regards “admissibility” is based on her assertion that she wanted to make submissions about the admissibility of the case against Mr. Gaddafi before the Pre-Trial Chamber considers the issue.[6] Her observations are necessary in her opinion because otherwise the decision on admissibility will be taken without any input from the Accused.[7] She then goes on to make substantive arguments on the legal invalidity of the Pre-Trial Chamber’s decision.[8]

Whatever the merits of Ms. Hosseinioun’s appeal, it should be declared as inadmissible under the Statute and Rules and therefore summarily dismissed.

Article 82 of the Rome Statute of the ICC provides that “Either party” may appeal a “decision with respect to jurisdiction or admissibility.”[9] Articles 12-13 and 17 govern jurisdiction and admissibility respectively. Articles 12 and 13 provide that the ICC will have jurisdiction (and can exercise that jurisdiction) where either the territorial or national State is a party to the Statute, a non-State party accepts the jurisdiction of the Court or the United Nations Security Council refers a situation to the Court which leads to a case.[10] Article 17 ties the concept of admissibility to the doctrine of “complimentarity” excluding ICC action where a State is already proceeding in a given case/situation or has conducted and terminated proceedings.[11] Neither Article of the Statute mentions amicus or Rule 103 on which Ms. Hosseinioun’s application was based.

Evan assuming for the moment that Ms. Hosseinioun should be considered a “party” for the purpose of appealing a decision denying a Rule 103 application, the Pre-Trial Chamber’s denial of her motion was not a decision on admissibility.[12] The reference in Article 82 to “admissibility” refers to decisions based on the criteria set out in Article 17, the only portion of the Statute to directly address admissibility standards. The Pre-Trial Chamber’s denial of Ms. Hosseinioun’s application was based the Chamber’s opinion that the information she desired to submit would not be “desirable for the proper determination of the case”. Granted, Ms. Hosseinioun wishes to make submissions related to the admissibility of the case against Mr. Gaddafi. However, the denial of permission to make submissions on the issue of admissibility and a decision on admissibility are two separate issues.

There is also no substantive right of the Accused to have his or her views considered before the Court makes a decision on admissibility. Article 19(5) provides that a concerned State “shall make a challenge at the earliest opportunity”. Subsection (4) provides that an admissibility challenge may be made “only once by any person or State”. The implication here is that more than one proceeding can be held on the admissibility of a case. For example, an accused may challenge the admissibility of the case even after the State has challenged the admissibility of the situation. The purpose of allowing more than one proceeding is to protect the right of the accused to challenge admissibility while at the same time protecting the legitimate interests of judicial economy and the finality of proceedings. These purposes would be frustrated if an accused were permitted to participate in an admissibility challenge raised by a State and then to raise his or her own separate admissibility challenge.

This case however is particular. Ms. Hosseinioun’s submission suggests a desire (at least on her part) to encourage the Court to find the case admissible. In her appeal she sets out that the current Libyan authorities are torturing those who are in their custody, the trials of those accused of working with the former regime are unfair and that the government’s ability to assert control over the country is questionable at best.[13] This situation would appear to show that the “defense” would support a finding of admissibility, a situation not contemplated by Article 19. The motivation or desires of an accused do not modify the legal regime. The Statute does not create a legally protected interest in having an international trial. Nowhere in the Statute is there a provision allowing an accused to request transfer of his case to the ICC from national authorities. The Statute provides ways for the ICC to discontinue or adjourn proceedings in order to allow States to proceed. It does not provide a way for the ICC to assert a form of judicial supremacy and take cases away from States, with one exception to which we will now turn.

Article 17(2) provides that where national proceedings are not designed to “bring the person concerned to justice” or are “designed to shield[] the person concerned from criminal responsibility” the Court can declare that a case is admissible notwithstanding the existence of national proceedings. The Court could interpret these passages to mean that a trial designed to convict an accused, and not one designed to provide a fair trial, is invalid for the purposes of an admissibility challenge and therefore declare a case admissible. However, even in this case, this is no right of the accused to choose international proceedings. It would just be an option for the ICC to take over a prosecution in the interests of justice. Even assuming this to be a valid interpretation of the Statute, allowing Ms. Hosseinioun to raise this argument on the Accused’s behalf would present a serious problem.

Ms. Hosseinioun does not represent the Accused. Therefore any argument she makes will not be attributable to him during future proceedings. In this way, assuming she is in close contact with Mr. Gaddafi, she can argue that the case is admissible at this juncture and then Mr. Gaddafi will be able to argue later on that the case is not admissible or that the ICC lacks jurisdiction. Such a procedure would allow the defense to have its cake and eat it too by providing supplemental representation through amicus. These considerations are however far afield from the original issue to be decided by the Appeals Chamber.

The last factor that needs to be considered in interpreting the Statute is that amicus are not granted procedural rights, as are the defense, the prosecution and participating victims. There are various provisions of Statute and Rules that provide the defense with the rights and obligations before the Court.[14] The Prosecution is subject to similar provisions.[15] Victims also benefit from the grant of rights and obligations in the proceedings.[16] Amicus are the subject of only one Rule and are absent from the text of the Rome Statute.[17] The logical conclusion is that amicus are not “parties” to the proceedings in any sense and so fall outside the grant of direct appeals governed by Article 82(1)(a). Even if the denial of Ms. Hosseinioun’s application were a decision on admissibility, the appeal would lack a legal basis as she is not a party to the proceedings.

The appeal therefore falls outside the scope of Article 82(1)(a) allowing an appeal without leave of the Pre-Trial Chamber. The Appeals Chamber should consequently summarily dismiss the appeal without reaching the merits.

[1] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Decision on the Applications of Mishana Hosseinioun and Aisha Gaddafi to submit Amicus Curiae observations to the Chamber, 2 February 2012.

[2] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Appeal Against Decision on Application Under Rule 103, 7 February 2012. (hereinafter Appeal)

[3] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Application For Leave to Appeal Against Decision on Application Under Rule 103, 7 February 2012.

[4] Appeal at ¶¶ 2-4.

[5] Ibid. at ¶ 5.

[6] Ibid. at ¶ 9.

[7] Ibid.

[8] Ibid. at ¶¶ 14-22.

[9] Article 82(1)(a).

[10] Articles 12-13.

[11] Article 17.

[12] The appeal does not go to jurisdiction therefore there is no need to discuss that branch of Article 82 here.

[13] Appeal at ¶ 12.

[14] See i.e., Article 19(2) of the Statute; Rule 121.

[15] See i.e., Article 19(10) of the Statute; Rule 62

[16] See i.e., Article 68 of the Statute; Rules 89-93.

[17] Rule 103.



Filed under International Criminal Law

2 responses to “Amicus, the ICC and the Case Against Saif Al-Islam Gaddafi

  1. simon

    Rigid adherence to legal procedure at the expense of reason?

    • I wouldn’t say that. To me it is more about what are the limits of the court’s authority. Rightly, the court limited itself to allowing amicus on issues related to deciding the case before it. Besides, as the court noted, the applicants were not really asking to be admitted as amicus, but to be allowed contact with the accused. Something that at the time (and still) was not in the power of the court to grant.

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