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?”
Thank you Dan for your comment. Article 17 of the Rome Statute is the point of reference in this case because it sets up the regime for challenging the admissibility, that is the continuing prosecution of a case, before the ICC. No other mechanism is supplied in the Rome Statute or the Rules of Procedure and Evidence at this stage of the proceeding to challenge the admissibility of a case. Strictly speaking, the issue is not one of “deferral,” which at the investigation stage is governed by Articles 16, 18 and 19. In post-investigatory stages, Article 16 (the only applicable article) requires action by the United Nations Security Council for deferral of a prosecution. For these reasons, I believe Article 17 is the controlling law in this circumstance. Pre-Trial Chamber I has expressed its agreement with the basic outline of this position in a recent press release.
As to your second point, the ICTY and ICTR would not be required to defer their cases. However, the UNSC did not create an ICTL with primacy over State proceedings. It granted jurisdiction to the ICC. As a treaty court, the ICC is bound by its statute and must apply its own law to every case in order to maintain its legitimacy as a legal institution. Libya therefore has the right to challenge the admissibility of the case.