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 made a request to the ICC on another situation so I will use that comparison. I am not convinced any country can give a completely fair trial on a large matter involving government mishandling of affairs. Therefore, I still find the ICC the best court either in the situation of Libya and for the United States. Society beliefs and politics plays a huge role in determining the impartial ability of a legal system.
As another example, I have a letter signed by attorney Mr. Elliot Williams with headquarters of U.S. Immigration and Custom Enforcement (ICE) to Majority Senate Leader Harry Reid that says, "we determined that Ms. Knisely's request is within the purview of the U.S. Department of Justice," (DOJ), and lists the name and address of Assistant Attorney General Ronald Weich. I called Mr. Weich and Mr. Eric Holder and did not receive a return phone call. The DOJ in Washington DC has made no effort to contact me.
A lot of other massive crimes occured multi-jurisdiction after I made those phone calls which includes the disappearance of another child and her mother; Brooke Bahar Safavi age 11, the half sister of my son Adrian (Cyrus Adrian Safavi).
My hunch to date is the United States made a back end deal with the Islamic Republic of Iran, a subsidy of Al-Qaeda, and that is why the DOJ won't take the case. That may change in one federal jurisdiction however it is still too early to make that determination.