International Criminal Court

Judge Luz del Carmen Ibáñez Carranza

Honorable chair, esteemed delegates and guests, dear comrades. I am Luz del Carmen Ibáñez
Carranza and I am going to remark the relevance of the case The Prosecutor v. Saif Al-Islam
Gaddafi.

According to the case information sheet for the International Criminal Court, Mr. Gaddafi
have been in involved in several and unforgivable crimes that include Murder, within the
meaning of article 7(1)(a) of the Statute; and Persecution, within the meaning of article 7(1)
(h) of the Statute.
In addition, Mr. Gaddafi have committed crimes as use of lethal force, attack against the
civilian population as well as prisoning and murdering civilians only for not share his
beliefs and regime ideas.
Nowadays Mr Gaddafi is a fugitive with an unresolved case where impunity and violation
of human rights is taking place.
It is of paramount importance to examine the case to clarify once and for all the issues
related with Mr. Gaddafi.
In total exist 3 issues immersed in the case.
First Issue: Were the Pre-Trial Chamber’s findings related to amnesties obiter dicta?
During the judgement, Pre-Trial Chamber’s reasoning and determination on the
incompatibility of amnesties had a transcendental part of the decision.
In light of the above, continuing with the second issue: Was the Pre-Trial Chamber correct
in its conclusion regarding the incompatibility of amnesties with international law?
The Judgment remark that ‘international law is still in the developmental stage on the
question of acceptability of amnesties’. However, there are well-established law, principles
and standards confirming that amnesties should not interfere with the punishment or crimes
against humanity. Even if there exist different types of amnesties, according to the Rome
Statue and the International law as well as different organizations and legislations, these
amnesties would not be a justification to take responsibility of the crimes. Even ONU
mention that amnesties for serious violations of human rights and humanitarian law—war
crimes, crimes against humanity and genocide—are generally considered illegal under
international law, regardless of whether they are given in exchange for a confession or
apology.
According to these, amnesties aims are to effectively prevent the investigation, prosecution
and punishment of those atrocities would thus be incompatible with international human
rights and as a consequence not compatible with the International Law. Furthermore, crimes
falling within the Rome Statute are the most serious crimes of concern to the international
community and always amount to grave human violations. In keeping with the Preamble
and well-established international law, these crimes must not go unpunished and must be
the subject of effective prosecution.

Talking about the victims and human rights, once their basic human rights have been
violated by the commission of international crimes, according to article 2(3)(a) of the
ICCPR, victims enjoy the right to an effective remedy, meaning the right to access tribunals
and the right to reparations.
Third Issue: Was the Pre-Trial Chamber correct in its finding about the incompatibility of
Law No 6 with international law, about its inapplicability to Mr Gaddafi, and about the
impact, if any, of the alleged de facto application of the law on Mr Gaddafi admissibility
challenge before this court?
Mr Gaddafi defense argumented the de facto application that means he could not be
sentenced because of the Libyan law. Law No. 6 does not provide for the possibility of any
alleged de facto application. The application must always be in conformity with the terms
of the law which in this case requires the existence of a reasoned decision by the competent
judicial authority. Therefore, as explained below, the purported de facto application of Law
No. 6 lacked both legal basis and legitimacy and did not have any legal effects on the legal
status of Mr Gaddafi.

There is a need to examine this issue in order to clarify the legality or otherwise of
amnesties or similar measures when dealing with the commission of atrocious crimes that
seriously violate core human rights, so It is extremely important that we solve this issue as
soon as possible, because in spite that he has been tried since May 11 2011, he has not
been sentenced for any of his crimes and do not let the chance to the acusated to pass over
the law.