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 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).
See Rome Statute, Article 17(1)(a). ↩
Id., Article 17(2)©. ↩