It has now been confirmed that the two remaining Libyan suspects wanted by the International Criminal Court (ICC), Saif al-Islam al-Qaddafi and Abdullah al-Senussi, have been detained by national authorities. What happens now?
Under international law, Libyan officials are required to surrender the two suspects to The Hague. However, members of the Transitional National Council (TNC) have stated their intention to hold the two accused in custody for trial in Libya. Resolving this apparent clash of jurisdictions will be the first and critical step for the new Libyan regime in demonstrating their commitment to international justice.
The way out of this dilemma is provided for in the terms of the ICC Rome Statute itself. Although not a State Party to the ICC, Libya is mandated to cooperate with the Court by the terms of the UN Security Council Resolution 1970. The arrest of the Saif and Al-Senussi activates the obligations to surrender them to the Court according to the terms of Articles 59 and 89 of the ICC Rome Statute. Under these provisions, national courts are to hold proceedings to verify the identity of the suspects and the validity of their detention for surrender to The Hague “as soon as possible”.
Should Libya fail to cooperate with the Court by surrendering the suspects, the judges may inform the Security Council of this under Article 87(5)(b) of the Rome Statue. The ICC prosecutor could also inform the Security Council of a failure to cooperate. The Security Council has a broad array of political responses at its disposal, including sanctions, but it also has the power to suspend ICC proceedings under the terms of Article 16 of the Rome Statue or otherwise pass a new resolution regarding its initial referral to the ICC.
Libya can also seek postponement of the ICC’s request to surrender Saif and Al-Senussi to the Court. First, under Article 94 of the ICC Rome Statute, the Libyan authorities could demonstrate that there is a risk of interfering with a separate and ongoing national investigation or prosecution, so long as Libya shows that the case in question is “different from that to which the request relates”. In such circumstances Libya and the Court are to agree the length of time required for the postponement before reverting to the requirement to implement the request. Secondly, under Article 95, Libya may postpone surrendering the suspects to The Hague if there is an admissibility challenge before the ICC which is pending a determination by the ICC judges under Articles 18 or 19. An admissiability charge would argue that there is no need for ICC action on the grounds that the matter in question is being dealt with properly in Libyan courts.
To make an admissibility challenge, Libya must first demonstrate that it has standing before the ICC to lodge such an admissibility challenge. Libya can do so under Article 19 by showing that it is already investigating or prosecuting the case against the two suspects wanted by the ICC. Libya must make such an admissibility challenge “at the earliest opportunity”. Therefore, all of the options open to Libya to proceed with the cases in Tripoli as opposed to The Hague require first showing that there are national investigations underway.
In order to make a successful challenge to admissibility of the cases before the ICC, Libya would then need to satisfy the terms of Article 17 of the Rome Statue by demonstrating that it is willing and able to carry out independent and impartial investigations or prosecutions. In considering this test, the Court will consider the capacity of the national justice system, and whether it is in “a total or substantial collapse or unavailability” such that it is not possible to obtain the necessary evidence or otherwise carry out legal proceedings. It is at this stage that the Court may consider the potential for application of the death penalty in Libya. The death penalty was expressly excluded from the potential sentences the ICC is able to enforce, and the practice of other UN tribunals demonstrates that the risk of implementing the death sentence is a bar to the transfer of an accused to national courts.
Aside from Libya, the accused and the prosecutor also have the right to request the judges to rule on admissibility, although in Saif’s case, there are indications that he has already sought to have his case tried in The Hague. So it is extremely unlikely that he will argue that his case is inadmissible before the ICC and should be heard in Libya. The Security Council and those who have submitted applications to the Court to be recognized as victims in the official proceedings could also file observations directly with the Court regarding any admissibility challenge. The ICC investigations are suspended pending the Court’s determination on admissibility.
It also appears that the prosecutor of the ICC may defer an investigation of his own volition. This is implied by Article 19(11) of the Rome Statute which provides the prosecution with options for obtaining information on local court proceedings “If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation”. In this regard it is instructive that the ICC prosecutor recently stated that he was travelling to Libya to meet with TNC officials to deicide “when and how” proceedings will take place. An arrest warrant “shall remain in effect until otherwise ordered by the Court” according to Article 58(4) of the Rome Statute, although it could be open for the prosecution to withdraw the arrest warrant.In the past this has only taken place upon proof of the death of an accused.
A final option that may be under consideration is moving the ICC trial to Tripoli. Under Article 62 of the Rome Statue, it is possible to decide to hold trials outside the seat of the Court in The Hague. In the past, the judges in the situations concerning Kenya and the Democratic Republic of Congo have sought submissions in this regard, although in both instances it was decided to proceed in The Hague due to infrastructure and security concerns in the countries in question.