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?”
For those that are interested, my comment on Article 98 has been rejected by the ICC. In the decisions on Article 87(7) for non-compliance of Chad and Malawi in failing to arrest al-Bashir when he visited those countries, the ICC held that those States were under an obligation to arrest al-Bashir even absent a waiver of immunity from Sudan.