It is crucial for the maintenance of international justice that Muammar Gaddafi, his son Saif al-Islam Gaddafi and Abdullah al-Senussi are transferred to The Hague
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Alison Cole for the Open Society Blog, part of the Guardian Legal Network guardian.co.uk, Tuesday 23 August 2011 12.23 BST
Article history
Saif al-Islam Gaddafi, son of Libyan leader, is wanted by the international criminal court for crimes against humanity Photograph: Imed Lamloum/AFP/Getty Images
As fighting continued in the Libyan capital Tripoli, the international criminal court said on Monday that Luis Moreno-Ocampo, the ICC prosecutor, has been in contact with the country's Transitional National Council regarding the three top Libyan leaders sought on war crime charges - the besieged Libyan leader Muammar Gaddafi, his son Saif al-Islam Gaddafi, and Abdullah al-Senussi, the former head of Libyan military intelligence.
Mr Ocampo's office said in a statement that he had been briefed on the security situation in Libya, and that "further conversations will define the precise way to move forward". This would include " the possibility to apprehend and surrender to the court the three individuals alleged to have committed crimes after 17 of February 2011, and also to investigate and prosecute them in Libya for crimes committed previously."
Mr Ocampo was quoted as saying: "Crimes in Libya were primarily committed against Libyans. The court issued arrest warrants on 27 of June against three individuals. They are some of the most serious crimes of concern to the international community as a whole. That is why the UN security council referred the situation to the international criminal court in February 2011."
Mr Ocampo's statement came after a weekend during which Saif al-Islam Qaddafi was reportedly detained by the rebels. So the statement from the ICC prosecutor seems to hint at what could be a point of tension: what if the National Transitional Council decides against transferring any of the three suspects to the ICC , perhaps citing popular demands for local justice?
The mandatory steps that should be taken under international law are relatively clear: the legal obligation is to implement the UN security council resolution 1970 and the ICC arrest warrant, which would require the suspects to be handed over to ICC control by being transferred to The Hague.
The issue of whether it is possible to try these suspects in Libya is a matter to be raised as part of the preliminary arguments under the pre-trial process before the ICC. ICC law recognises that in some circumstances, a state may be willing or able to try their suspects at home, and it is open to the legitimate government of Libya to make such arguments before the ICC.
Libya is also required to investigate and prosecute other persons not named in the ICC arrest warrants, according to the concept of complementarity which requires all nations to address international crimes.
The international community has already faced an almost carbon-copy of this dilemma in the case of Sudan (although the main point of distinction being that Libya may demonstrate the will and ability to conduct genuine proceedings against the ICC suspects, whereas in Sudan that may be regarded as doubtful).
As in the case of Libya, the UN Security Council referred the situation in Darfur to the ICC, and as in all council resolutions, states were required to implement the resolution and thus cooperate with the ICC. The ICC then issued an arrest warrant against Omar al-Bashir, Sudan's president, on charges including genocide.
However, other organs of the UN, in particular the peacekeeping force in Sudan, viewed the execution of this ICC arrest warrant as outside their mandate. There have also been several occasions where states that accepted the ICC's jurisdiction have failed to arrest Bashir when he was on their territory.
If this precedent is repeated in Libya, it risks establishing a parallel, extra-judicial process. This could pose a serious challenge to the ICC given that the ICC has no police force to implement arrest warrants and thus the ICC relies on the cooperation of states for the transfer of suspects to proceed with trials. It is therefore crucial for the maintenance of international justice that the ICC arrest warrants are implemented through the transfer of the three suspects to The Hague.
Alison Cole is the Open Society Justice Initiative Legal Officer, International Justice
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Comments in chronological order (Total 5 comments)
benad361
23 August 2011 12:35PM
International laws are of no consequence. Insisting they stand trial in the ICC (basically to make the ICC look strong) is not the correct way to go about it. The LIBYAN PEOPLE should decide this. From what I have seen, I think many want him to go on trial in Libya, at least first, and then the ICC, if at all. International law should respect that. If it doesn't, it's rather hypocritical.
progressive78
23 August 2011 12:55PM
The ICC is a joke and lacks any legitimacy. While it continues to be used as a political tool for Western Governments rather than impartially enforcing international law this situation will not change.
If they had brought any action against, by way of example, Sri Lanka or Bahrain then they may have some credibility.
Those interested in a serious system of international justice would be better off calling for a reform to this defunct institution and allowing the Libyans to have the closure of a full trial, in their own country and in their own language. This way all of Gaddafis crimes committed during his time in power will be addressed, including corruption and political persecution. And the ICC will no be propped up by another show trial.
Pika
23 August 2011 1:15PM
You mention the principle of complementarity, only to ignore it. The ICC should try suspects only when the state involved is unwilling or unable to do so. Not only is this the purpose of the court, but is also part of its legal constitution. Article 17:
...the 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 unwilling or unable genuinely to carry out the investigation or prosecution;
If post-Gaddafi Libya is "unwilling or unable genuinely to carry out the investigation or prosecution" then, and only then, the ICC has the legal right to do so.
I too would like to see international criminal law strengthened, but this will not happen by ignoring the letter of the law.
englishbernie
23 August 2011 1:15PM
Since Libya is not a signatory the ICC has no jurisdiction in the Country. Pointless article.
Michae1
23 August 2011 1:19PM
should we not also try all the western governments who for so many years (happily and knowingly) did business with Gaddafi??
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