On Wednesday, May 21, the Appeals Chamber of the International Criminal Court (ICC) in The Hague confirmed that the case against Saif Al-Islam Gaddafi, son of the late Libyan leader Muammar Gaddafi, is admissible before the court. This follows a May 1, 2012 challenge by the Libyan government that the case against Mr. Gaddafi was not admissible before the ICC because he was the subject of domestic investigations in Libya. On May 31, 2013, Pre-Trial Chamber I of the ICC rejected the challenge by the Libyan government, deciding that the case was admissible before the court. On June 17, 2013, the Libyan government appealed the pre-trial chamber’s decision.

The Appeals Chamber decision, issued by a majority, was read out by Judge Erkki Kourula. Judge Sang-Hyun Song issued a separate concurring opinion while Judge Anita Ušacka dissented to the majority decision.

The Libyan government in its submission to the Appeals Chamber had raised four grounds of appeal.

Firstly, that the pre-trial chamber was wrong in its finding that the Libyan government had failed to show that domestic investigations against Mr. Gaddafi related to the same case as that before the ICC, in line with Article 17(1)(a) of the Rome Statute. On this, the Appeals Chamber dismissed Libya’s submission, stating that the pre-trial chamber did not err in law and in fact in its conclusion.

Secondly, the Libyan government argued that the pre-trial chamber’s conclusions on whether the same case was before the court could not be reasonably reached based on available evidence. On this, the Appeals Chamber dismissed Libya’s submission, stating that Libya has failed to establish unreasonableness in the pre-trial chamber’s decision.

Thirdly, that the pre-trial chamber acted unfairly by failing to “take appropriate measures for the proper conduct of the procedure.” This, according to Libya, deprived the state from relying on evidence that could have supported its admissibility challenge. On this, the Appeals Chamber dismissed Libya’s submission, stating that Libya had ample opportunity to present evidence to substantiate its admissibility challenge.

Lastly, Libya argued that the pre-trial chamber erred in its finding that the “unavailability of its national judicial system” prevented Libya from “obtaining the accused” and getting access to “the necessary evidence” to effectively carry out proceedings against Mr. Gaddafi. The Appeals Chamber held that the pre-trial chamber had made no error in making this conclusion.

Libya  made a separate request to be allowed to submit additional evidence, and on this, the Appeals Chamber ruled that such a request ought to be made to the pre-trial chamber that is seized of the matter, not the Appeals Chamber.

In a separate concurring opinion, Judge Song, while agreeing with the majority decision opined that he disagreed with the majority’s finding that Libya was not investigating the “same case” as the one before the ICC. According to Judge Song, Libya’s investigations related to the same case as before the ICC, but that the case was still admissible before the ICC because Libya could not obtain custody of Mr. Gaddafi.

Judge Usacka appended a dissenting opinion to the majority decision. According to Judge Usacka, a finding that the domestic proceedings did not cover that which is before the ICC is erroneous and that the “same person” and “same conduct” test as established by the pre-trial chamber was not in line with the complementarity requirement in Article 17 of the Rome Statute. Such an interpretation, she said, would interfere with the sovereignty of states and will prevent them from focusing on wider activities related to a particular situation. The goal of fighting impunity, she argued, is also achieved if other crimes, different from those before the ICC, are being investigated. She concluded that the Appeals Chamber should reverse the admissibility decision and the matter remanded for consideration to the pre-trial chamber.

Saif Gaddafi was charged, along with his father, the late Muammar Gaddafi, and former head of Libya’s intelligence Abdullah Al Sanussi, with murder and persecution as crimes against humanity committed during the revolution that rocked Libya in early 2011. On June 27, 2011, warrants of arrest were issued for all three of them. Muammar Gaddafi’s warrant of arrest was subsequently withdrawn on November 22, 2011 following his death in the hands of a Libyan mob.

Saif Gaddafi remains in custody in Libya.