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?”
You raise an interesting point about the silence of the Rome Statute on the procedure upon a UNSC referral. However, the ICC is a complete system in this respect. Are you suggesting that the judges of the Court should create an applicable procedure on admissibility ex nihilo? This is especially problematic in the ICC system considering that prior decisions are not binding precedent (see, Article 21(2) and the decision of 4 November 2011 of the Pre-Trial Chamber in Prosecutor v. Ruto et. al.) This could lead to incredibly unequal application of any set of rules a Chamber of the Court might create.
You also note that Article 98 could result in weird results. This Article applies to all cases before the Court. It makes no distinction between States Party to the Rome Statute and non-party States. No request shall be made where the requested State would have to violate the diplomatic immunity of another State. I admit that this is not my area of expertise, so please take my analysis here for what it is worth. I have searched the Statute and I cannot find an obligation to waive immunity as such for arrest in a third party State. A State Party that does not arrest its own officials to send to the Court is in violation of its duty to cooperate with the Court (Article 86). This does not ipso facto translate into a general waiver of immunity vis-a-vis third States. Although, failure to do so may also be a failure to cooperate. Given the pronouncements of the ICJ in this area, it is more than likely that an arrest of a siting president (absent waiver) would be a violation of international law regardless of whether the State is a party to the Rome Statute or not. This is a weakness in the ICC system, but I believe it is there all the same.
Of course, the discussion on Article 98 has nothing to do with the lack of immunity under Article 27.