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?”
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.