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?”
The most salient issue to me in this debate is Libya’s ability to conduct a fair trial. With Libya in a state of transition, I do not think that it would be able to accomplish this. This leads me to believe that the ICC would be the most appropriate forum for this case.
Under Article 17 of the Rome Statute, a case is inadmissible at the ICC, “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” To genuinely carry out an investigation or prosecution, there cannot be unfairness against the defendant. There can be no “genuine” prosecution when the defendant is not adequately represented or is being tried in a biased national court. I think the plain language of the statute indicates a strong desire to have a fair trial (whether domestically or by the ICC), which innately encompasses not only fairness to the prosecution, but also fairness to the defendant. For the ICC to concern itself and become involved only when judicial process attempts to shield the defendant would be a very narrow reading of the statute. I do not think the language of Article 17 promotes this interpretation. Furthermore, it might actually be harmful to the ICC’s developing legitimacy to, by its actions, essentially take the position that as long as the defendant is not being shielded by domestic courts, those courts are “genuinely” carrying out the prosecution.