The Libya Question — Comments

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Comment on the Libya Question: “Should Saif al-Islam Gaddafi be tried by the National Transitional Council of Libya or by the International Criminal Court?”

The controversy of where Saif al-Islam Gaddafi will be tried could be critical in developing the ICC’s admissibility policy. In my opinion, the ICC should allow Libya to conduct a national prosecution. The ICC is, after all, a court of last resort, and aims to complement national jurisdictions when possible. In this case, Libya has a clear interest in trying Gaddafi on domestic soil. Unless the ICC can articulate a clear and very convincing argument as to why Libya is completely unable to conduct a fair trial, the Court should defer to the principle of positive complementarity.

This is not to say that the ICC need be entirely hands-off. In perhaps a more indirect way, the ICC’s deferral to Libyan courts can pressure them to conduct a fair trial. In allowing a Libyan trial, the ICC will not be washing its hands of the situation; rather, it can monitor the impartiality of the trial and the “ability” under Article 17 of the Libyan justice system. Several articles of the Rome Statute allow the ICC to review the impartiality of a trial either during it or after its completion.1 For instance, Article 18(3) states that:

[t]he Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.

Therefore, the ICC may defer to Libyan proceedings, conditioned in part upon the Libyan trial being conducted impartially.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Rome Statute, Article 17, 18(3), and 20(3)(b).

My concern is that while Libya is in a state of transition its courts may not have the capacity to conduct a fair trial. Not that it would let Saif al-Islam escape punishment...quite the opposite. The concern would appear to be vengeance enacted through the court system. If that mistake is made, it would be irreversible.

However, Libya could press the issue and challenge admissibility under Article 19. Not sure if any state has done so yet, but it would definitely highlight the contours of the provisions of Article 17.

Since ICC is not original court but spare one ,and Since Libyan judicial jurisdiction was held and the prosecution is underway now so Libyan courts have the priority now to prosecute Saif al-Islam Gaddafi and ICC must abstain now from asking extradite him

Does anyone really think that Saif Gaddafi would get a fair trial in Libya? The stories of Libyan loyalists being found bound and executed in that hotel were a taste of the kind of justice that Saif might expect if the rest of the world wasn't paying attention.

Moreno-Ocampo's remarks in Libya were that he didn't have to worry about whether the trial would be fair. He said that the ICC's standard is only to intervene if it's going to be a white-wash in favor of the defendant. As long as there's going to be a vigorous prosecution, the ICC stands back.

Reuters quoted him as saying: "My standard, the standard of the ICC, is that it has to be a judicial process that is not organized to shield the suspect. That's it, that's it."

But the ICC's prosecutor doesn't decide this issue. Rather, this is a decision for the ICC's judges.

I have made a request to the ICC on another situation so I will use that comparison. I am not convinced any country can give a completely fair trial on a large matter involving government mishandling of affairs. Therefore, I still find the ICC the best court either in the situation of Libya and for the United States. Society beliefs and politics plays a huge role in determining the impartial ability of a legal system.

As another example, I have a letter signed by attorney Mr. Elliot Williams with headquarters of U.S. Immigration and Custom Enforcement (ICE) to Majority Senate Leader Harry Reid that says, "we determined that Ms. Knisely's request is within the purview of the U.S. Department of Justice," (DOJ), and lists the name and address of Assistant Attorney General Ronald Weich. I called Mr. Weich and Mr. Eric Holder and did not receive a return phone call. The DOJ in Washington DC has made no effort to contact me.

A lot of other massive crimes occured multi-jurisdiction after I made those phone calls which includes the disappearance of another child and her mother; Brooke Bahar Safavi age 11, the half sister of my son Adrian (Cyrus Adrian Safavi).

My hunch to date is the United States made a back end deal with the Islamic Republic of Iran, a subsidy of Al-Qaeda, and that is why the DOJ won't take the case. That may change in one federal jurisdiction however it is still too early to make that determination.

On 26 February 2011, the United Nations Security Council (UNSC) referred the situation in Libya to the Prosecutor of the ICC. The UNSC at the same time ordered “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.” In order to answer the questions posed, it is necessary to be established whether the UNSC intended to bind Libya to the ICC’s rules on admissibility when it referred the situation to the ICC; particularly the authority of the Court to determine the admissibility and then proceed with a prosecution when it determines the case is admissible. If the answer is yes, then the ICC’s framework is the proper legal regime to govern the issue of where the trial should be conducted.

The admissibility of a case after the issuance of an arrest warrant is governed by the relevant provisions of the Rome Statute (Articles 17, 19) giving the chambers the authority to decide the issue. Libya would be obliged to hand S. Gaddafi over to the Court for trial if so ordered by virtue of its UNSC imposed obligation to cooperate. Reading the Rome Statute and the relevant UNSC resolution together demonstrates the fact that handing a suspect over to the Court is “cooperation”. Article 89 dealing with the surrender of suspects to the Court is found in Part 9 of the Statute titled “International Cooperation and Judicial Assistance.” Surrender is therefore an act of cooperation. The UNSC would have been aware of this when it ordered Libya to “cooperate fully”. The ICC, particularly the Pre-Trial Chamber in this case, is therefore the proper place for both the decision on admissibility and the determination of the proper authority to conduct the trial.

Libya would be unlikely to succeed on an admissibility challenge as things currently stand. Article 17 sets out that a case will be inadmissible, inter alia, where a State that has jurisdiction is investigating the same case. The jurisprudence of the Court interprets this to mean that at the stage of the proceedings where there is already a concrete case, the national proceedings “must cover the same individual and substantially the same conduct” to render the case inadmissible. Given the fact that the new regime in Libya has not yet set up a functioning judicial system, not to speak of police and prosecution services, means that it is unlikely that the new government will be able to demonstrate an investigation that is far enough along to satisfy this standard. The best Libya could do is to demonstrate an intent to begin an investigation. However, this is insufficient to satisfy the legal standard of the Court on admissibility challenges at this stage of the proceedings.

The answers to the questions then, as I see them, are:

(1) Should the TNC or the ICC try S. Gaddafi? As a legal matter, the answer appears to be that the trial should be before the ICC. However, there is no legal reason why the trial could not be held in Libya, pursuant to Articles 3(3), 62, if the security of the trial can be assured.
(2) Who has the legal authority to decide on the place of trial? At this stage it is the ICC. Admissibility (resulting in who tries S. Gaddafi) in this context deals with the division of labor between the Court and Libya. The Court is bound to apply its own rules and therefore is the necessary legal framework within which the Court must decide the issue. Libya will be bound to cooperate with the decision of the Court pursuant to the relevant UNSC resolutions depriving it of legal authority to decide otherwise.
(3) What process should be used to decide who should try S. Gaddafi? Before the issuance of an arrest warrant the Office of the Prosecutor could have made this decision internally by not requesting the arrest warrant or deferring an investigation pursuant to Article 18. Now that an arrest warrant has been issued, it appears that the competent organ of the Court is the Pre-Trial Chamber.
(4) Should the ICC address the ability of the Libyan system to give S. Gaddafi a fair trial? No. The legal standard for admissibility at this stage does not include willingness or inability (which implicate fair trial concerns). Such a review should not be conducted ex ante before any national trial or investigation has begun or has taken place. The Court should not engage in fortune telling of what a potential Libyan investigation and trial (or any other State) would look like. It should only evaluate the sufficiency of present or past proceedings.

I would just like to note that this is a legal analysis that has nothing to do with the likelihood that S. Gaddafi will be handed over to the ICC. It also does not take into account the potential damage to the standing of the ICC if it were to engage in a confrontation, and lose, with Libya over custody of S. Gaddafi. These concerns, in my opinion, are not relevant to the legal question given the stage of the proceedings before the ICC and the mandatory language in the Rome Statute. They are extremely important all the same.

One thing I've been thinking about (but haven't researched): Why must Article 17 govern whether the ICC can hear the case, or whether it must defer to the Libyan government?

One of the ICC's purposes is to replace ad hoc international criminal tribunals. If the Security Council had instead created the International Criminal Tribunal for Libya, would it defer to Libyan government prosecutions? Would the ICTY or ICTR have deferred to national prosecutions?

Thank you Dan for your comment. Article 17 of the Rome Statute is the point of reference in this case because it sets up the regime for challenging the admissibility, that is the continuing prosecution of a case, before the ICC. No other mechanism is supplied in the Rome Statute or the Rules of Procedure and Evidence at this stage of the proceeding to challenge the admissibility of a case. Strictly speaking, the issue is not one of “deferral,” which at the investigation stage is governed by Articles 16, 18 and 19. In post-investigatory stages, Article 16 (the only applicable article) requires action by the United Nations Security Council for deferral of a prosecution. For these reasons, I believe Article 17 is the controlling law in this circumstance. Pre-Trial Chamber I has expressed its agreement with the basic outline of this position in a recent press release.

As to your second point, the ICTY and ICTR would not be required to defer their cases. However, the UNSC did not create an ICTL with primacy over State proceedings. It granted jurisdiction to the ICC. As a treaty court, the ICC is bound by its statute and must apply its own law to every case in order to maintain its legitimacy as a legal institution. Libya therefore has the right to challenge the admissibility of the case.

I should have been more explicit. I meant that maybe Article 17 should not be the point of reference for when the Security Council refers matters to the ICC.

Nothing in the Rome Statute states what legal framework should be applied when the Security Council refers a matter to the ICC. And, sure, we can assume that the Rome Statute in entirety applies, but that may lead to weird results.

For example, does indicted Sudanese President Al-Bashir have immunity under Article 98 because he is the head of state of a non-party state? Or does the nature of the referral remove his Article 98 immunity? I think the latter is a better answer.

And here, I pose a similar question: Does the nature of a referral change the way we apply Article 17?

You raise an interesting point about the silence of the Rome Statute on the procedure upon a UNSC referral. However, the ICC is a complete system in this respect. Are you suggesting that the judges of the Court should create an applicable procedure on admissibility ex nihilo? This is especially problematic in the ICC system considering that prior decisions are not binding precedent (see, Article 21(2) and the decision of 4 November 2011 of the Pre-Trial Chamber in Prosecutor v. Ruto et. al.) This could lead to incredibly unequal application of any set of rules a Chamber of the Court might create.

You also note that Article 98 could result in weird results. This Article applies to all cases before the Court. It makes no distinction between States Party to the Rome Statute and non-party States. No request shall be made where the requested State would have to violate the diplomatic immunity of another State. I admit that this is not my area of expertise, so please take my analysis here for what it is worth. I have searched the Statute and I cannot find an obligation to waive immunity as such for arrest in a third party State. A State Party that does not arrest its own officials to send to the Court is in violation of its duty to cooperate with the Court (Article 86). This does not ipso facto translate into a general waiver of immunity vis-a-vis third States. Although, failure to do so may also be a failure to cooperate. Given the pronouncements of the ICJ in this area, it is more than likely that an arrest of a siting president (absent waiver) would be a violation of international law regardless of whether the State is a party to the Rome Statute or not. This is a weakness in the ICC system, but I believe it is there all the same.

Of course, the discussion on Article 98 has nothing to do with the lack of immunity under Article 27.

For those that are interested, my comment on Article 98 has been rejected by the ICC. In the decisions on Article 87(7) for non-compliance of Chad and Malawi in failing to arrest al-Bashir when he visited those countries, the ICC held that those States were under an obligation to arrest al-Bashir even absent a waiver of immunity from Sudan.

The ICC Should Use the Trial of Saif Al Islam Gaddafi to Pressure Libya to Create Competent Courts

The ICC operates under a principle of complementarity which requires that the ICC defer to competent, national criminal proceedings against an alleged criminal violator in his home state. The Court may step in and overtake criminal proceedings in national courts, however, when the national courts are “unwilling or unable” to prosecute.1 It is unclear what is meant by “unwilling or unable” although on its face the law does not suggest that a bias either for or against the defendant is acceptable. I believe the Statute incorporates instances not only of sham trials seeking to exonerate likely violators, but also trials which lack fundamental elements of fairness even for a reprehensible defendant.

The Rome Statute further states that proceedings which are “not being conducted independently or impartially” or in a manner “inconsistent with an intent to bring the person concerned to justice” might suggest that national courts are “unwilling or unable” to prosecute.2 An intent to bring the person concerned to justice requires that justice be done—justice requires not only convictions, but also the opportunity to vigorously defend those who may be innocent. Therefore, I argue that the ICC is empowered to interrupt national proceedings that lack fundamental elements of fairness or which slant too far in favor of the prosecution.

Although the ICC may not desire to interrupt the trial of Saif Al Islam Gaddafi as it seeks to remain a court of last resort, the Court may use the threat of interruption to encourage Libya to create a competent court system. By ensuring that the new Libya adheres to fundamental elements of fairness in the trial of one of its worst violators, the ICC will encourage a vigorous system of courts to prosecute mid—and low-level alleged violators as well. By ensuring fair courts, the ICC will serve its mission of creating peace by offering an alternative to vicious retribution and creating a reliable process by which the numerous violators from Libya’s struggle for freedom may be held to account for their crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Rome Statute, Article 17(1)(a).

  2. 2.

    Id., Article 17(2)©.

After maniacal execution of Qaddafi and his son Mutasim, does anyone believe in fair trial for Seif.
Of course they'll leave him to be executed. Why? Very simple. Qaddafi couldn't do anything without existing unknown leaders of corruption, which now change dress, and indict 'mad dog'. They'll be new leaders of Libya. Beside, some west companies are involved in this high corruption. All must be hush up.
What if he go in International Court for trial? Get 20 years, and after 10 years, when Libyans wake up under chains of new, old people he'll come back as a hero. Don't be naive. He must be killed, to close mouth who know too much.

The ICC should allow Libya to try Saif al-Islam Gaddafi. It is unlikely that Libya is “unwilling or unable” to carry out the prosecution under Article 17 of the Rome Statute. The ICC needs to adhere to its policy and mandate of positive complementarity. The advantage of trying Saif at the ICC is that the ICC’s court system offers a higher level of sophistication. That is, both counsel and judges boast training and experience in dealing with higher level crimes. They also operate under the Rome Statute, a mandate which governs their actions and that has been carefully crafted to administer justice under international standards.

The question is whether the Libyan courts are fit to do this job. According to Prosecutor Luis Moreno-Ocampo, Libyan courts, although formerly not in a position to do so, are now ready and able to carry out the current task. This will certainly be a difficult process, as Libya’s justice system seems to fall short of international standards at the moment while institutions are being reconstructed. However, it may be the case that the transitional government will take more precaution and effort in administering justice after the learning a lesson from the manner in which the Libyans handled Muammar al-Gaddafi’s capture. Allowing Libya to carry out Saif’s trial is essential to evaluating the current status of the Libyan court system, as its capabilities are not entirely clear.

The ICC is likely to receive a high level of criticism if it were to try Saif and usurp the local courts. Consequently, this would diminish the ICC’s credibility and render it more taxing for new States to adopt the Rome treaty and to administer justice for future crimes. It would also hinder current States Parties, particularly African States Parties, from abiding by its mandate, as we see occurring with African States Parties in executing the arrest warrant for Omar al-Bashir. It is also questionable whether Libya would agree to hand Saif over to the ICC. Libya’s Justice Minister, Mohammad al-Allagui, has indicated that Libya in fact will not release him to the ICC. It seems that the ICC is almost cornered into allowing Libyan courts to try Saif. Ocampo has indicated that the ICC will provide support in carrying out the prosecution. Allagui has told al-Jazeera that Libyans would welcome international monitors over Saif’s trial.

Nevertheless, the effect of this current situation on the ICC is a positive contribution to the ICC’s ability to function. Although the ICC may not carry out the prosecution, one of its main deficiencies, executing arrest warrants, has seen progress. It is open to debate to what extent the ICC’s issuance of Saif al-Islam’s arrest warrant impacted his actual capture.

S.Gaddafi should be tried by the international criminal court. The organization with lawful authority to make that decision is United Nations. The ICC can compare Libya's dosmetic legal system against Rome statute and United Nation's declaration for human rights. Then a final decision can be applied concerning punishment or aquittal for S.Gaddafi.

I have read a few comments on the issue and an idea came to my mind on a possible challenge by Libya on the ICC jurisdiction. I am not sure of its relevancy. I have started studying International Criminal Law only recently so I might have missed a few elements.

I agree with the considerations on the article 17 that would declare Libya unable, at the moment, to prosecute thoroughly Saif al-Islam Khadafi.
However, I was wondering if there is a possibility to challenge the Security Council referral upstream. I haven’t been able to find such provisions on the Rome Statute except the article 19 but it only refers to the article 17. An argument against the prosecution led by the ICC could be that the Security Council referral was inconsistent with the International Law and therefore should be cancelled.

There is indeed an inconsistence with the resolution 1970 itself which recalls the responsibility to protect principle. The R2P concept provides, inter alia, for means for the population to prevent the four most serious crimes and to rebuild. Rebuilding means also implementing justice against the perpetrators of these crimes. Consequently, by referring to the ICC, the Security Council may prevent from a complete implementation of the resolution 1970’s perspectives.

Furthermore, the Security Council referral in the context of uprising in Libya could be seen as acting against the principles and purposes of the UN Charter. This uprising gave a chance for the Libyan people to choose its own leaders and to organize the institutions afterward. This is what implies the self-determination concept of the article 1 of the UN Charter. Considering that the first aim of this uprising was to dismiss and potentially try the leaders for the crimes perpetrated, the Security Council is then impeding the right to self-determination. The Libyan people should have the chance to bring the uprising to its end.

Finally, the referral to the ICC to prosecute a national of a non-member state could give a feeling of impunity to other persecutors from uprising countries, not nationals of a state-party neither. Indeed, it means that only political reasons led to the prosecution of the former. The perpetrators have not been prosecuted by their population for the crimes they did in their country. On the contrary they have been prosecuted by the ICC on referral of the Security Council (highly politicized institution) because the case was involving political issues concerning the permanent members. In my view, this picture of the international criminal justice goes against one principle of the Rome Statute which is to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. It questions also the positive complementarity, and the role of the ICC to assist the national legal system to implement the international criminal law.

Definitely an interesting discussion about the academical problem of the relationship between the ICC and national jurisdiction.
Nevertheless I'm afraid in fact it is more a practical than a legal problem, what to do if Libya (or in future any other state) is not co-operating with the Court. Maybe a good chance to explore the political will and practical power of the Court and the international community on this issue (and enough material for some master's thesis to compare if something changed since ICTY times).

Personally I'm quite sure what can be expected from a trial in Libya, even with minimum standards of human rights formally guaranteed. As far as I can remember there are just very few cases of real justice served in similar political situations.

This is a critical question and strikes at the heart of the Rome Statute--Complementarity and State Sovereignty.
The preamble to the ICC statute reads: "Affirming...their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, ....
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those for international crimes,...

This takes us to Article 17. The NTC has expressed its desire to prosecute Saif al-Islam Gaddafi. To wit, this reduces to the question as to whether the NTC is "unable genuinely" to carry out the investigation and prosecution. The determination of whether the NTC is unable genuinely to investigate and prosecute Gaddafi is determined by the OTP.

Is it not error to assume the premise as true, that the OTP is the appropriate body to carry out the determination of functionality of a State's judiciary? There should be little problem giving primacy to the ICC where there is no proper functioning judiciary, however where there is a functioning judiciary I find it problematic that that OTP is the ultimate decision maker as to the proprietary of proper judicial function.

By way of example, the NTC may favor the death penalty whereas the death penalty is precluded by the ICC. Ultimately, this may translate into the assertion of ethnocentric western values over the people who have been victims of a dictatorship propped up by the very countries that will now question the ability of the State to prosecute a fair trial. This will ultimately lead to an evisceration of restorative justice.

Restorative justice is inextricably linked to article 68 of the ICC Statute. From the experiences in the various ad hoc tribunals, specifically the ICTY, it cannot be gainsaid that trial of Gaddafi in The Hague will leave many Libyans feeling that justice has not been served. Assuming he is found guilty many will consider Gaddafi to be living in "Club Fed".

Thus based on the primacy on State Sovereignty and complementarity to the extent a functioning judiciary exists in Libya, Gaddafi should be tried there. To the extent that the Libyan judiciary is seen as inadequate, legal representatives from the OAU in conjunction with the OTP should assist is seeing that Gaddafi is given a fair trial.

Simply said, to fully provide restorative justice to the Libyan people who have been victims of CAH Saif al-islam must be tried by the TNC in Libya.

Libya is in a state of transition, which raises doubts about its ability to conduct a fair and impartial trial of Saif al-Islam Gaddafi. More specifically, Article 17(2) of the Rome Statute provides that the ICC should consider whether the accused shall be given a trial with the intent to bring him or her to justice. Most telling is the language found under (c) of that provision which states the ICC shall have conduct trials where: "in the circumstances, is inconsistent with an intent to bring the person concerned to justice".

Maybe a stronger legal basis can be found elsewhere in the Rome Statute, but this language does tend to highlight the concern of the Court to ensure that in addition to escaping impunity, the accused be given a fair trial "with an intent to bring the person concerned to justice". In a transitional situation, the Prosecutor may very well determine that the political environment would be inconsistent with such an intent.

Either way, if Libya does take umbrage at this assumption then it does have the power under Article 19 of the Rome Statute to challenge the admissibility of the Saif al-Islam Gaddafi case before the ICC. I think that is one of the important things to consider: ICC jurisdiction is not instantly a settled matter. States - or the accused - can challenge the ICC jurisdiction on Article 17 grounds.

Does the whole thing ultimately become a question of burden-shifting?

The most salient issue to me in this debate is Libya’s ability to conduct a fair trial. With Libya in a state of transition, I do not think that it would be able to accomplish this. This leads me to believe that the ICC would be the most appropriate forum for this case.

Under Article 17 of the Rome Statute, a case is inadmissible at the ICC, “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” To genuinely carry out an investigation or prosecution, there cannot be unfairness against the defendant. There can be no “genuine” prosecution when the defendant is not adequately represented or is being tried in a biased national court. I think the plain language of the statute indicates a strong desire to have a fair trial (whether domestically or by the ICC), which innately encompasses not only fairness to the prosecution, but also fairness to the defendant. For the ICC to concern itself and become involved only when judicial process attempts to shield the defendant would be a very narrow reading of the statute. I do not think the language of Article 17 promotes this interpretation. Furthermore, it might actually be harmful to the ICC’s developing legitimacy to, by its actions, essentially take the position that as long as the defendant is not being shielded by domestic courts, those courts are “genuinely” carrying out the prosecution.

Currently, Seif al-Islam, one of the most important figures in pre-war Libya, remains confined by one of the tribal militias still operating despite multiple pleas by its national government to lay down arms. Seif continues to lack any legal counsel. Libya's deputy prosecutor has said Seif could hire any attorney at any time. Of course, the fact that he still has not done so begs the question why, which has no comforting answer. Further, it remains unclear when any Libyan court, let alone a competent court, will be ready to begin trying Seif anytime soon. The events surrounding the civil war also make it nearly impossible to imagine impartial Libyan jurors.

Prosecutor Moreno-Ocampo's recent visit to Libya underscored all of these concerns. While he left his blessing on a trial in Libya, he also opined that the Libyan authorities should consult the ICC judges when necessary. That admonition indicates the significant level of doubt surrounding justice mechanisms for Seif in Libya. Political concerns surely left Moreno-Ocampo with little choice but to avoid declaring that Libya is "unable or unwilling" to prosecute -- at least at this early juncture.

Up to this point, Libya has not shown itself capable of creating a legitimate legal system to try Seif -- especially If it cannot (or will not) provide Seif with an attorney. While most legal observers would probably prefer a national trial in principle (including myself), strict adherence to that principle in the face of grossly unfair proceedings is unacceptable. Consequently, while Libya must have the opportunity to demonstrate that it is both able and willing to prosecute, we must not prematurely conclude that both of these are true simply because we would like to see a national trial.

I looked up the history on Wikipedia and I feel that the people are well educated to make a decision for themselves if given the chance. If he was a tyrant, would it not be better if he served time as willed by his people. Would this set a precedent?