The UN Security Council referred the Libyan situation to the ICC in Resolution 1970 on February 26, 2011. On March 3, 2011, the ICC Office of the Prosecutor opened an investigation. On June 27th, the ICC judges issued three arrest warrants, including one for Saif al-Islam Gaddafi (سيف الإسلام معمر القذافي) (hereinafter “S. Gaddafi”). The charges are that he is criminally responsible as an indirect co-perpetrator of two counts of crimes against humanity: murder and persecution under Article 7(1) of the Rome Statute.
In accordance with Resolution 1970, the ICC charges only address actions subsequent to February 15th. The charges arise from S. Gaddafi’s alleged role in murderous attacks on civilians after that date.
On October 20, 2011, Muammar Gaddafi was captured alive in Sirte and, while in custody, was killed under controversial circumstances. On November 19, S. Gaddafi was captured near Ubari in Southern Libya as he was reportedly trying to leave Libya for neighboring Niger. As of November 21st, he was being held in Zintan, Libya.
The principle of complementarity, set forth in Article 17 of the Rome Statute, provides (in relevant part):
(T)he Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is […] unable genuinely to carry out the investigation or prosecution;
In light of the international law on this matter, and other factors, should S. Gaddafi be tried by the National Transitional Council of Libya or the ICC? Who has the legal authority to make that decision? By what process should that decision be made? Should the ICC assess the capacity of Libya’s domestic legal system to give S. Gaddafi a fair trial? If so, what factors or standards should be used in deciding that question?
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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:
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).
See Rome Statute, Article 17, 18(3), and 20(3)(b). ↩