The Prosecutor of the ICC, Mr Luis Moreno Ocampo, made a statement before the Security Council on 16 May 2012 with regard to the situation in Libya. For the full text of his statement click here. The full text of the third report of the OTP to the Security Council of the United Nations is available here.
Mr Ocampo started his statement by giving a short overview of the previous two reports submitted to the Security Council. In the first report the OTP has emphasized the importance of the Security Council’s consensus in the adoption of Resolution 1970 and also announced that it would request arrest warrants in the following weeks. Ocampo pointed out that the Security Council’s consensus greatly enhanced the cooperation received and allowed the OTP to present a first case in a few months.
In its second report, the OTP explained that the arrest warrants issued by the Judges on 27 June 2011 unveiled the crimes committed against civilians in Tripoli and other areas under the control of Gaddafi. The Judges concluded that in order to stop the crimes and protect civilians it was necessary to arrest the three individuals identified as the most responsible: Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. The OTP declared that if the Libyan authorities decided to prosecute the same individuals for the same crimes under investigation by the International Criminal Court, they should submit an admissibility challenge and it would be for the ICC Judges to decide.
Mr Ocampo informed the Security Council that the Libyan authorities have arrested Saif Al-Islam Gaddafi and have presented an admissibility challenge (see our previous post here) on 1 May 2012. Following the submission of the Libyan admissibility challenge, the Pre-Trial Chamber requested observations from different parties to the proceedings, as well as from the UN Security Council. Rule 59 of the ICC Rules of Procedure and Evidence provides that those who have referred a situation, in this case the Security Council, must be notified of the challenge, and may in response make representation on the jurisdictional challenges. The Registry has transmitted the notification through a Note Verbale to the UN Secretary General.
Ocampo noted that this is the first time in the short history of the Court that a State is requesting jurisdiction to conduct a national investigation against the same individual and for the same incidents under investigation by the ICC. The challenge goes to the heart of the system of justice established in 1998 by the Rome Statute: national States have the primary obligation to conduct proceedings and the International Criminal Court’s intervention will be complementary. Ocampo stated that the Prosecution will present its observations, as requested by the Pre-Trial Chamber, on 4 June. One can gather from this statement that the OTP will not press for Saif Al-Islam Gaddafi to be brought before the ICC.
Through its 3rd report the OTP informed the Security Council that two arrest warrants against Saif Al‐Islam Gaddafi and Abdallah Al‐Senussi are outstanding. Mauritania received a surrender request from the Court against Al‐Senussi. Libya has made a challenge to admissibility for both Gadaffi and Al‐Senussi. Under the Rome Statute, admissibility analysis is not an assessment of the judicial system as a whole, but an assessment as to whether or not the national authorities have investigated or prosecuted, or are investigating or prosecuting genuinely the cases selected by the Office. Ocampo informed the Security Council that the Office of the Prosecutor plans to continue its ongoing investigation and to continue its evaluation of Libya’s efforts in order to ensure that justice is done in Libya.