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?”
Currently, Seif al-Islam, one of the most important figures in pre-war Libya, remains confined by one of the tribal militias still operating despite multiple pleas by its national government to lay down arms. Seif continues to lack any legal counsel. Libya's deputy prosecutor has said Seif could hire any attorney at any time. Of course, the fact that he still has not done so begs the question why, which has no comforting answer. Further, it remains unclear when any Libyan court, let alone a competent court, will be ready to begin trying Seif anytime soon. The events surrounding the civil war also make it nearly impossible to imagine impartial Libyan jurors.
Prosecutor Moreno-Ocampo's recent visit to Libya underscored all of these concerns. While he left his blessing on a trial in Libya, he also opined that the Libyan authorities should consult the ICC judges when necessary. That admonition indicates the significant level of doubt surrounding justice mechanisms for Seif in Libya. Political concerns surely left Moreno-Ocampo with little choice but to avoid declaring that Libya is "unable or unwilling" to prosecute -- at least at this early juncture.
Up to this point, Libya has not shown itself capable of creating a legitimate legal system to try Seif -- especially If it cannot (or will not) provide Seif with an attorney. While most legal observers would probably prefer a national trial in principle (including myself), strict adherence to that principle in the face of grossly unfair proceedings is unacceptable. Consequently, while Libya must have the opportunity to demonstrate that it is both able and willing to prosecute, we must not prematurely conclude that both of these are true simply because we would like to see a national trial.