The International Criminal Court’s (ICC) chief prosecutor, Moreno-Ocampo, conceded that the captured son of Muammar Gaddafi may be tried in Libya and could face the death penalty if convicted.
Libya is still struggling to build new institutions after Muammar Gaddafi’s forty-two year rule. The ICC has indicted Gaddafi’s son, Saif al-Islam but might allow the trial to be held in Libya as long as the Libyan Court complies with the ICC standards.
The ICC prosecutor, Moreno-Ocampo, stated, “Saif is captured so we are here to ensure cooperation. Now in May, we requested an arrest warrant because Libyans could not do justice in Libya. Now as Libyans are decided to do justice, they could do justice and we’ll help them to do it, so that is the system.” What was the big change from May until now? In May, Libyan officials were not capable of doing justice, but now, six months later, their judicial system is up and running smoothly?
A main difference between the ICC and Libyan’s judicial system is the issue of the death penalty. Libya has not taken the death penalty off of the table for criminal punishment, the ICC’s severest punishment is life imprisonment. Even though the ICC might allow Libya to take the reigns on this trial, they will continue to monitor the case and even have their own judges involved, according to Moreno-Ocampo. Does this make up for the short time Libya has had the infrastructure to “do justice?”
Do you think that the fragile state of Libya is up to this task? Should the ICC allow them to take the lead on this case and prosecute Saif? Usually the ICC would prosecute this type of crime against humanity under these circumstances, is it fair that Saif might face the death penalty rather than life in prison under ICC punishment? Do you think the ICC is backing off because so many might wish to see Saif receive the death penalty?
Article: http://www.reuters.com/article/2011/11/22/us-libya-idUSTRE7AL0JM20111122
This presents a very interesting dynamic for the ICC. The preamble of the Rome Statute states that the ICC is to function in a complimentary capacity with respect to national jurisdictions that are willing and able to prosecute citizens who have committed crimes of international concern. Clearly, the Gaddafis have been linked to major human rights violations. So, the ICC should step back and let Libya should handle its own business, right? Wrong.
I think the death penalty plays a major role in the ICC’s consideration. The Rome Statute gives the ICC jurisdiction in situations where the state seeking to maintain jurisdiction cannot prosecute the accused in manner consistent with justice and in an impartial manner. Libya’s citizens are blood hungry. The Gaddafis represent years of oppression and the tip of the spear in a bloody civil war that just recently ended. Its doubtful that any of the Gaddafis would be able to get a fair trial in Libya at this point. Based on this, I think its only right for the ICC to step in and take over. Regardless of how much evidence is stacked against the Gaddafis they deserve a fair trial in front of an impartial jury.
In fact, the International Criminal Court Public Affairs Unit recently released an updated press report indicating that:
“[s]hould the Libyan authorities wish to conduct national prosecutions against the suspect, they shall submit a challenge to the admissibility of the case before Pre-Trial Chamber I, pursuant to articles 17 and 19 of the Rome Statute of the ICC. Any decision on the admissibility of a case is under the sole competence of the Judges of the ICC.
Therefore, contrary to what has been reported in the media, Pre-Trial Chamber I of the ICC remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force.” http://www.icc-cpi.int/NR/exeres/48F6B130-EC14-4A51-BC79-1CCF8633E270.htm
What, then, of Prosecutor Moreno Ocampo’s earlier statements? I wonder either if the Prosecutor had reacted to being caught in a political “rock and a hard place” with the capture and arrest, or perhaps whether the ICC has preemptively made its own determination upon the issues you have raised.
The Rome Statute states that “The [ICC] is complementary to national criminal jurisdictions. It is not intended to supersede their jurisdiction. It will act only when the national jurisdiction is unable or unwilling to genuinely prosecute, or in the case of referral by the Security Council.” In the present situation in Libya where you have such a recent regime change, it is unlikely that the new Libyan government will be able to satisfy both “willing” and “able.” Additionally, the word “genuinely” speaks to the likely biased nature of the new regime’s judicial process. How can the new Libyan government give Gaddafi’s son a truly fair trial? For these reasons, I believe it is advisable that the ICC Prosecutor try this case.
I think you are right to express some concern over Libya’s ability to effectively mete out justice in this situation. Six months is not a very long time in terms of re-building the infrastructure of a country. It seems unlikely that Libya would have had time to evaluate their judicial system and what its needs are. It’s great that they want to take responsibility and initiative in handling their affairs. However, I personally would be concerned about whether they would be able to hold an impartial legal proceeding for Gaddafi’s son. Only a short time has gone by since everything in Libya started. People are still probably processing what’s happened to their country and it’s unlikely that they would have recovered enough to to hold a fair trial. I would be concerned about people seeking vengeance rather than justice and that is not how Libya should be starting themselves off. I think the ICC would be the better court to handle this case, and Libya should focus on their rebuilding efforts.
I wholeheartedly support the declaration by Moreno-Ocampo that Libya is within its legal rights to prosecute Gaddafi’s son instead of the ICC. In order for the ICC (and international law in general) to continue to gain credibility on the world stage, actors must continue to abide by clearly delineated obligations under international law like those codified in the Rome Statute.
Article 17, Section 1 of the Rome Statute clearly states:
[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 unwilling or unable genuinely to carry out the investigation or prosecution.
Given Libya’s progress in reforming its government, the evidence seems to indicate that it is able to carry out a prosecution, meaning the exception outlined above doesn’t apply, and the case is inadmissible in the ICC. All signs point to Libya having the ability to genuinely carry out the prosecution of Saif al-Islam.
If the ICC were to demand that it be the body to prosecute Gaddafi’s son, it would ultimately harm the ICC’s credibility, and the rule of international law in general.