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?”
This is a critical question and strikes at the heart of the Rome Statute--Complementarity and State Sovereignty.
The preamble to the ICC statute reads: "Affirming...their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, ....
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those for international crimes,...
This takes us to Article 17. The NTC has expressed its desire to prosecute Saif al-Islam Gaddafi. To wit, this reduces to the question as to whether the NTC is "unable genuinely" to carry out the investigation and prosecution. The determination of whether the NTC is unable genuinely to investigate and prosecute Gaddafi is determined by the OTP.
Is it not error to assume the premise as true, that the OTP is the appropriate body to carry out the determination of functionality of a State's judiciary? There should be little problem giving primacy to the ICC where there is no proper functioning judiciary, however where there is a functioning judiciary I find it problematic that that OTP is the ultimate decision maker as to the proprietary of proper judicial function.
By way of example, the NTC may favor the death penalty whereas the death penalty is precluded by the ICC. Ultimately, this may translate into the assertion of ethnocentric western values over the people who have been victims of a dictatorship propped up by the very countries that will now question the ability of the State to prosecute a fair trial. This will ultimately lead to an evisceration of restorative justice.
Restorative justice is inextricably linked to article 68 of the ICC Statute. From the experiences in the various ad hoc tribunals, specifically the ICTY, it cannot be gainsaid that trial of Gaddafi in The Hague will leave many Libyans feeling that justice has not been served. Assuming he is found guilty many will consider Gaddafi to be living in "Club Fed".
Thus based on the primacy on State Sovereignty and complementarity to the extent a functioning judiciary exists in Libya, Gaddafi should be tried there. To the extent that the Libyan judiciary is seen as inadequate, legal representatives from the OAU in conjunction with the OTP should assist is seeing that Gaddafi is given a fair trial.
Simply said, to fully provide restorative justice to the Libyan people who have been victims of CAH Saif al-islam must be tried by the TNC in Libya.