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?”
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.