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 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.