Libya: A Rebuff to the ICC

Libya should promptly surrender Saif al-Islam Gaddafi to the International Criminal Court (ICC) in The Hague. Saif al-Islam Gaddafi, a son of Muammar Gaddafi, is wanted for crimes against humanity.

Libyan authorities will hold a hearing in Tripoli's South Court on September 19, 2013, opening the pretrial (or "accusation") phase in domestic proceedings against Saif al-Islam Gaddafi, as well as the former intelligence chief and ICC suspect Abdullah Sanussi, and other senior Gaddafi-era officials. Under Libyan law, a judge must review the sufficiency and reliability of the prosecutor's evidence and establish the precise charges. In its submissions to the ICC, Libya said it envisaged the charges against the two ICC suspects to include murder, torture, and indiscriminate killings during the uprising that led to Muammar Gaddafi's ouster.

"Carrying on with a domestic proceeding against Saif Gaddafi in the face of an ICC order to turn him over to The Hague is a serious misstep," said Richard Dicker, international justice director at Human Rights Watch. "Libya assured the UN Security Council it would cooperate with the court, and it needs to turn Saif Gaddafi over to The Hague without any more delay."

On July 18, an ICC appeals chamber rejected Libya's request to delay turning Gaddafi over to the ICC until the court rules on the appeal of Libya's bid to prosecute him domestically, which the ICC had rejected. In their decision, the ICC judges concluded that transferring Gaddafi to The Hague would not hinder Libya's domestic investigations.

United Nations Security Council Resolution 1970, which referred the situation in Libya to the ICC, requires the Libyan authorities to cooperate fully with the court, a binding requirement under the UN Charter, even though Libya is not a party to the treaty that established the court. This cooperation includes abiding by the court's decisions and requests, as well as adhering to the court's procedures.

Libya has promised to abide by its obligations. In a recent submission to the ICC, Libya said it "does not dispute that it is bound by Security Council Resolution 1970." Members of the UN Security Council, which unanimously gave the ICC jurisdiction to investigate the situation in Libya, should send a strong message to authorities there to cooperate with the court.

On July 23, Gaddafi's ICC defense team asked the ICC judges to find that Libya had failed to cooperate with the court by refusing to surrender Gaddafi. Article 87 of the ICC treaty permits the court to issue a finding of non-cooperation.

Because the ICC has jurisdiction in Libya as a result of a Security Council referral, such a finding would be sent to the Security Council for follow-up. The Security Council then has a range of options, including resolutions, sanctions, and presidential statements. On August 14, Libya asked the court to reject the defense request on the basis of Libya's good faith efforts to engage with the ICC.

Anti-Gaddafi forces apprehended Saif al-Islam Gaddafi on November 19, 2011, in southern Libya and are holding him in the town of Zintan. Although the Libyan government has indicated since January 2012 that it plans to transfer Gaddafi to a detention facility in Tripoli, these efforts appear stalled. The Libyan authorities should view getting custody of Gaddafi from the militia that is holding him a priority so that he can be promptly surrendered to the ICC.

Libya filed its legal bid at the ICC to prosecute Gaddafi domestically on May 1, 2012, and was initially told it could postpone surrendering him to the ICC until it made its decision. On May 31, 2013, the ICC judges rejected Libya's bid and reminded the Libyan authorities of their obligation to surrender him.

The court held that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC, a requirement under the ICC treaty for such challenges, and that it was unable genuinely to carry out an investigation of Gaddafi. The judges concluded that the Libyan authorities have neither been able to secure legal representation for Gaddafi nor to facilitate his transfer into government custody.

The ICC is also considering a separate Libyan challenge to the court's jurisdiction to try Sanussi and has granted the authorities permission to postpone surrendering him, pending a decision. However, the ICC judges have made clear that Libya must not take any action during the postponement period that would hinder Sanussi's prompt surrender to The Hague if it fails in its bid to prosecute him domestically. Lawyers representing Sanussi at the ICC have since filed an appeal of the decision allowing Libya to postpone the former intelligence chief's surrender.

Libya says that it is actively investigating the case against Sanussi outlined in the ICC's arrest warrant. Libya also contends that the scope of its Sanussi investigation extends back to the 1980s and involves serious human rights violations committed during Gaddafi's rule, including the June 1996 killing of more than 1,200 prisoners in Tripoli's Abu Salim prison. The Security Council gave the ICC ongoing authority over events in Libya beginning on February 15, 2011, covering the period of the protests that resulted in Gaddafi's ouster.