The Trial of Saif al-Islam Gaddafi: A Test for the ICC and Libya

By Sofia Ijaz, 1L

On November 19th, 2011, the fugitive son of Muammar Gaddafi, Saif al-Islam Gaddafi, was captured in Libya’s southern desert. After referral by the United Nations Security Council through Resolution 1970, the International Criminal Court (ICC) issued an arrest warrant for Saif on charges of crimes against humanity for his role in the regime’s brutal crackdown on protesters. An arrest warrant was also issued for Abdullah Al-Senussi, a Colonel in the Libyan Armed Forces and the head of Mil- itary Intelligence.

Once Saif was arrested, an international debate arose over who would conduct his trial: the ICC, which issued the arrest warrant, or Libya, who has custody of the defendant? Soon after his arrest, Libya’s newly formed National Transitional Council announced its desire to conduct Saif’s trial inside Libya. Libyan Prime Minister-designate Abdurrahim El-Keib promised fair trial procedures: “We assure Libyans and the world that Saif al-Islam will receive a fair trial... under fair legal processes which our own people have been deprived of for the last 40 years.” Despite such assurances, it is unclear whether Libya’s embryonic government and judiciary are capable of holding Saif’s trial. The Libyan government has yet to establish control over the whole country, let alone an independent and fair judiciary. Militias continue to hold pro-Gaddafi supporters in secret detention centers, and violence continues in cities such as Tripoli and Bani Walid.

The ICC’s policy of positive complementarity (the idea that the Court should complement and not replace domestic courts) would allow for Saif to be tried within Libya. However, to do so, Libya must formally challenge the ICC’s jurisdiction (on the basis of Article 19 subsection 2(b) of the Rome Statute) on the ground that it is investigating and prosecuting the case itself.

The question remains, what happens to Saif in the interim? Does Libya have an obligation, in light of the arrest warrant, to surrender Saif until the ICC decides the jurisdictional issue? This situation presents an important test for the Court and its credibility. If Libya is obligated to hand Saif over, and refuses to do so, what would that mean for the future of the Court’s international influence? The question of Libya’s obligations and the ICC’s jurisdiction are more than procedural in nature – they go to the core of issues concerning the Court’s mandate, power, and credibility.

Article 89 of the Rome Statute creates an obligation for states to comply with a request of surrender by the Court. While the provision refers to States Parties, the provision appears to be equally applicable to Security Council referrals of situations to the ICC. Thus, while Libya, is not a party to the Rome Statute, the Security Council referral had the legal effect of subjecting Libyan authorities to the Court’s jurisdiction. There is an exception to the Article 89 obligation where the accused has already been convicted or acquitted for a particular crime. In that case, the State “may postpone the execution of the request for surrender” until the Court decides on admissibility. However, this exception does not contemplate postponement where a challenge has been made to the ICC’s jurisdiction based on complementarity – the type of challenge at issue here.

Other provisions in the Rome Statute seem to point to the contrary conclusion – that Libya is permitted to postpone a request to surrender custody of Saif. Article 19(8)(c), which deals with challenges to the admissibility of a case, enables the Prosecutor to “prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.” Therefore, it appears that the Statute does contemplate a situation where the state maintains custody of the defendant until the Court decides on admissibility. In addition, Article 95 of the Rome Statute enables a State to postpone a request by the Court (such as for surrender) “where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19.” Since Saif's case involves an admissibility challenge under Article 19, this part of the Statute seems to point in favour of Libya being able to maintain custody of Saif pending a determination by the Court. However, the second part of that provision states that the postponement is possible, “unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.” Thus, it is not clear whether or not Article 95 deals only with challenges in respect of collection of evidence, or whether it applies to all admissibility challenges.

Upon these readings of the Rome Statute, it appears that Libya may not have a duty to turn over Saif while it challenges the jurisdiction of the Court. If this reading is correct, the Court has an interest in explicitly delineating this. If there is an obligation to surrender Saif, which international NGOs such as Human Rights Watch have publicly stated there is, and Libya disregards it, the Court will look weak if it is unable to compel Libya to comply.

The decision on jurisdiction over Saif’s case will be a test of both the Court’s influence and Libya’s sovereignty. ICC Prosecutor Luis Moreno-Ocampo stated on a visit to Tripoli that if Libya could demonstrate its ability to conduct a fair trial, it would have the right to try Saif. However, the decision on jurisdiction will ultimately be made by ICC judges. As part of a formal challenge to the ICC’s jurisdiction, Libya was required to provide answers about Saif’s arrest and the conditions of his detention. Libya has yet to respond to the Court. The resolution of this issue will contribute to the international debate over where and how alleged war criminals should be tried.