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Libya Submits Observations to ICC Regarding Arrest and Detention of Saif Al-Islam Gaddafi: Latest News and Opinions

25 Jan 2012

Dear All,

It was reported on Monday, 23 January 2012, that Libyan authorities submitted a confidential response to the International Criminal Court (ICC). Please find below a Q&A on the ICC and Saif al-Islam Gaddafi from Human Rights Watch (I) and related news and opinions (II).

On 6 December 2011, Judges of ICC Pre-Trial Chamber I had requested that the Libyan government submit observations by 10 January 2012 on the arrest and detention of Saif Al-Islam, a deadline further extended to 23 January 2012.

On 19 November 2011, International Criminal Court suspect Saif Al-Islam Gaddafi was arrested by Libyan authorities. Saif Al-Islam Gaddafi is wanted by the ICC for crimes against humanity allegedly committed in Libya as of 15 February 2011.

While the Libyan authorities retain primary jurisdiction over crimes committed in their territory, they are legally bound to facilitate the transfer of the suspects to the ICC, unless Pre-Trial Chamber I decides that the case is no longer admissible before the Court because the Libyan authorities are investigating or prosecuting the same individuals for the same crimes at national level. Such a decision could be triggered in one of three ways (1) either the Libyan government directly challenges the case’s before the ICC; (2) the ICC prosecutor seeks an admissibility ruling from the PTC; or (3) the PTC on its own motion decides that the case is no longer admissible. In any event the admissibility determination would be ultimately made by ICC judges.

Similarly, if Libyan authorities would allege that the immediate execution of an ICC request for cooperation would interfere with ongoing investigations or prosecutions of the same individuals for different crimes, they would have to consult with the ICC and may postpone the execution of the ICC’s cooperation request for a period of time agreed upon with the Court.

Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the Coalition will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Best regards,

CICC Secretariat
www.coalitionfortheicc.org<http://www.coalitionfortheicc.org/>

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I. HRW Q&A

1. “Libya: Q&A on the ICC and Saif al-Islam Gaddafi,” Human Rights Watch, 23 January 2012, http://www.hrw.org/news/2012/01/23/libya-qa-icc-and-saif-al-islam-gaddafi

“…The following questions and answers concern the relationship between the ICC's case against Saif al-Islam Gaddafi and potential domestic proceedings against him in Libya. For additional information about Libya and the ICC, please see “Libya: Surrender Saif al-Islam Gaddafi to ICC” (November 2011); “Libya: Q&A on the Arrest and Surrender of the Three International Criminal Court Suspects” (August 2011), and “Libya: Q&A on the Arrest Warrants for Gaddafi, Cohorts” (June 2011).

1. What is the source of the International Criminal Court's jurisdiction in Libya?

2. Has the ICC sought the arrest and surrender of Saif al-Islam Gaddafi?

3. Is Libya obligated to cooperate with the court's request for the arrest and surrender of Saif al-Islam Gaddafi?

4. What if the Libyan authorities encounter difficulties that prevent them from fulfilling the court’s request for Saif al-Islam Gaddafi's surrender?

5. Can Libya try Saif al-Islam Gaddafi, instead of the ICC?

6. Did the ICC prosecutor accept that Saif al-Islam Gaddafi would be tried by Libya instead of in The Hague?

7. What if Libya intends to investigate Saif al-Islam Gaddafi for the same crimes as those in the ICC's arrest warrant? Is that enough to successfully challenge the admissibility of the case before the ICC?

8. If Libya files an admissibility challenge, how will that affect the ICC prosecutor’s investigation?

9. Is the prosecutor still investigating crimes in Libya?

10. What if Libya wants to try Saif al-Islam Gaddafi for crimes different than those in the ICC's warrant?

11. Can the ICC hold its proceedings in Libya?

12. What happens if Libya doesn’t cooperate with the ICC?

13. Does Saif al-Islam Gaddafi have a defense lawyer and has he been brought before a judge?

14. Does denying Saif al-Islam Gaddafi access to a lawyer and a judge violate Libyan or international law?

15. What happens next?....”

II. RELATED NEWS AND OPINIONS

1. “No decision yet on Gaddafi son's trial: ICC,” Reuters Africa, 23 January 2012, http://www.reuters.com/article/2012/01/23/us-icc-libya-idUSTRE80M0YG20120123

“... ICC spokesman Fadi El-Abdallah said that the court had received information on Monday from Libya but declined to give details, saying it was confidential.

He added that the judges had not made a decision on whether Saif al-Islam could be tried in Libya, contradicting comments by Libya's minister of justice.

"Libya applied on Friday to the ICC for Saif to be tried in a Libyan court. The ICC accepted," Minister of Justice Ali Humaida Ashour told Reuters on Monday, adding that an investigation into Saif had yet to finish but his trial date would be announced when it had been completed....”

SEE ALSO:

1. “ICC denies decision on trying Gaddafi's son Saif Islam in Libya,” Xinhua, 24 January 2012, http://news.xinhuanet.com/english/world/2012-01/23/c_131374479.htm

2. “Libya says it, not ICC, will try Gaddafi's son Saif al-Islam,” Reuters 23 January 2012, http://www.reuters.com/article/2012/01/23/us-icc-libya-idUSTRE80M1V820120123

3. “Trial plans uncertain months after capture of Gadhafi's son,” Raja Razek, CNN, 23 January 2012, http://www.cnn.com/2012/01/23/world/meast/libya-gadhafi-icc/index.html

4. “A show trial for Saif Gaddafi would only promote discord in Libya,” Polina Levina, The Guardian, 24 January 2012, http://www.guardian.co.uk/law/2012/jan/24/show-trial-saif-gaddafi-libya?newsfeed=true

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

Communications to the ICC can be sent to:

ICC
P.O. Box 19519
2500 CM The Hague
The Netherlands