On 22 November, Pre-Trial Chamber I of the International Criminal Court (ICC) decided to terminate the case against Muammar Gaddafi (for the full text of the decision see here). It remains to be seen whether anyone from the opposing forces will be tried by the Libyan authorities for killing Gaddafi on 20 October after having captured him. The ICC’s involvement with regard to the situation in Libya has attracted lots of attention over the last days. The main reason is the decision of the Libyan authorities to try Saif Al Islam Gaddafi in Libya, after having captured him a few days ago. In the meanwhile, it is reported that Abdullah al-Senussi, Libya’s former intelligence chief, has also been captured in a remote place about 500 km south of Tripoli.
In a press statement issued on 23 November the ICC clarified the course of action to be followed after the arrest of Saif Gaddafi. An arrest warrant was issued on 27 June 2011 for him on two charges of crimes against humanity, consisting of murder and persecution. The Prosecutor of the ICC has argued that the Pre-Trial Chamber I Judges have the exclusive competence to decide on the continuation of the ICC judicial procedure. In accordance with Resolution 1970, adopted unanimously by the UN Security Council on 26 February 2011, the Libyan authorities have the obligation to cooperate fully with the Court. On 5 July 2011, a request for cooperation with regard to the surrender of the suspect was notified, together with the warrant of arrest, to the Libyan authorities.
According to the ICC, should the Libyan authorities wish to conduct national prosecutions against the suspect, they should submit a challenge to the admissibility of the case before Pre-Trial Chamber I, pursuant to articles 17 and 19 of the Rome Statute. Until then, 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.
Issues relating to the application of the complementarity principle at the ICC have arisen also in the situations of Uganda and Kenya. It remains to be seen how the complementarity principle will be applied in the case of Libya. Whoever is going to prepare the arguments on behalf of Libya will have an interesting and challenging task in front of them. Carsten Stahn has written a piece on R2P, the ICC and the Libyan arrests, discussing in some detail the issue of complementarity. That post can be accessed here.
The debate on complementarity in relation to the Libyan situation has been marked by confusion and misinterpretation. It is particularly misleading to argue that domestic proceedings take precedence per se, or without ICC monitoring, as suggested in recent media statements. In the post referred to below (R2P, the ICC and the Libyan arrests), I argue that the debate over the proper forum of justice pits the interplay between domestic and international justice to a crucial test.
http://www.haguejusticeportal.net/eCache/DEF/12/998.c2V0TGFuZz1GUiZMPUZS.html
Thank you for the comment Carsten; we’re in full agreement. Sometimes the media gets it wrong, unfortunately (especially when they do not not consult an expert when dealing with complex legal issues). The shared State responsibility you refer to in relation to the responsibility to protect is of a similar nature as the complementarity principle applied at the ICC. That is, States themselves have the main responsibility to comply with certain important obligations and if they fail than respectively either the organized international community of States or the ICC should step in. It does not appear to me that the ICC has a better claim to try the two suspects recently captured than Libya. The fact that the situation was referred to the ICC by the Security Council does not mean that Libya has to cede its jurisdiction to the ICC. In any event, the ICC should closely monitor the situation to make sure that fair trial standards are complied with during the trial of Saif Gaddafi and Abdullah al-Senussi, should they be tried in Libya. Personally, I’d prefer that a mixed tribunal tries them in Libya. I guess that solution provides a middle way to, as you put it, ‘the crucial test between domestic and international justice’.