Saif Gaddafi: ICC Judge’s Separate Opinion Reaffirms Amnesties for International Crimes are Contrary to the Rights of Victims

Last month, the Appeals Chamber of the International Criminal Court (ICC) confirmed the previous decision of Pre-Trial Chamber I, which found that the case against Saif Al-Islam Gaddafi is admissible before the Court. In a separate opinion released this week, Judge Luz del Carmen Ibáñez Carranza has now reaffirmed that amnesties for international core crimes that amount to gross violations of human rights are incompatible with international law and violate the rights of victims.

In 2018, Gaddafi, who is accused of committing crimes against humanity for his alleged role in the violent suppression of civilian demonstrations in Libya in 2011, challenged the admissibility of the case against him on the basis that he was already tried by a Libyan court. He further argued that the crimes he is accused of are covered by an amnesty law (Law No. 6 of 2015), which would bar any further criminal proceedings against him in Libya, and that therefore the judgement entered by the Tripoli court is final.

Pre-Trial Chamber I rejected his arguments on 5 April 2019. Noting LFJL and REDRESS’ amicus curiae submission, it found that amnesties and pardons for crimes against humanity are incompatible with international law and deny the rights of victims to truth, justice and reparations.

While the Appeals Chamber confirmed the Pre-Trial Chamber’s finding that the judgment against him by a Libyan court was not final and that Law No. 6 did not apply to Gaddafi, the decision did not deal with the issue of amnesties in much detail.

While Judge Ibáñez found that certain forms of amnesties, such as conditional amnesties, may be granted, provided that they respect victims’ rights to truth, justice and reparations, and guarantee forms of accountability, amnesties that result in impunity for acts that constitute crimes under the jurisdiction of the Court are contrary to the object and purpose of the Rome Statute.

Judge Ibañez noted that: “In determining whether an amnesty […] is compatible with international law, it is its effect rather than its nomenclature that matters. If the effect of the measure is impunity for perpetrators of international crimes, then such measure would be incompatible with international law”.

Judge Ibañez relied on jurisprudence from the Inter-American Court of Human Rights, European Court of Human Rights, African Court of Human and People’s Rights, United Nations Human Rights Committee and the ad hoc tribunals to find that amnesties for crimes against humanity are incompatible with States’ obligations to investigate, prosecute and punish perpetrators of gross human rights violations.

Unlike the common judgment of the Appeals Chamber, which stated that ‘international law is still in the developmental stage on the question of acceptability of amnesties’, Judge Ibañez thus found that there is well-established law, principles and standards confirming that general amnesties and equivalent measures for grave human rights violations are incompatible with international law.

“We welcome this concurring opinion by Judge Ibañez, which reasserts that no impunity measure should be allowed to erode the Rome Statute’s goal to ensure accountability for the most serious international crimes. We hope Judge Ibañez’s view is adopted by the majority of the ICC Appeals Chamber in future cases as it also advances the rights of victims to justice, truth and reparations”, said Rupert Skilbeck, Director of REDRESS.

Photo: Courtesy BBC.