As fighting continued in the Libyan capital Tripoli, the International Criminal Court said on Monday that Luis Moreno-Ocampo, the ICC prosecutor, has been in contact with the country’s Transitional National Council regarding the three top Libyan leaders sought on war crime charges—the besieged Libyan leader Muammar Qaddafi, his son Saif al-Islam Qaddafi, and Abdullah al-Senussi, the former head of Libyan military intelligence.
Mr Ocampo’s office said in a statement that he had been briefed on the security situation in Libya, and that “further conversations will define the precise way to move forward". This would include " the possibility to apprehend and surrender to the Court the three individuals alleged to have committed crimes after 17 of February 2011, and also to investigate and prosecute them in Libya for crimes committed previously.”
Mr Ocampo was quoted as saying: “Crimes in Libya were primarily committed against Libyans. The court issued arrest warrants on 27 of June against three individuals. They are some of the most serious crimes of concern to the international community as a whole. That is why the UN Security Council referred the situation to the International Criminal Court in February 2011.”
Mr Ocampo's statement came after a weekend during which Saif al-Islam Qaddafi was reportedly detained by the rebels (reports which subsequently proved untrue). So the statement from the ICC prosecutor seems to hint at what could be a point of tension: what if the National Transitional Council declines to transfer to the ICC any of the three suspects, perhaps citing popular demands for local justice?
The mandatory steps that should be taken under international law are relatively clear: the legal obligation is to implement the UN Security Council resolution 1970 and the ICC arrest warrant, which would require the suspects to be handed over to ICC control by being transferred to The Hague.
The issue of whether it is possible to be try these suspects in Libya is a matter to be raised as part of the preliminary arguments under the pre-trial process before the ICC. ICC law recognizes that in some circumstances, a state may be willing or able to try their suspects at home, and it is open to the legitimate government of Libya to make such arguments before the ICC.
Libya is also required to investigate and prosecute other persons not named in the ICC arrest warrants, according to the concept of complementarity which requires all nations to address international crimes.
The international community has already faced an almost carbon-copy of this dilemma in the case of Sudan (although the main point of distinction being that Libya may demonstrate the will and ability to conduct genuine proceedings against the ICC suspects, whereas in Sudan that may be regarded as doubtful).
As in the case of Libya, the UN Security Council referred the situation in Darfur to the ICC, and as in all council resolutions, states were required to implement the resolution and thus cooperate with the ICC. The ICC then issued an arrest warrant against Omar al-Bashir, Sudan’s president, on charges including genocide.
However, other organs of the UN, in particular the peacekeeping force in Sudan, viewed the execution of this ICC arrest warrant as outside their mandate. There have also been several occasions where States that accepted the ICC’s jurisdiction have failed to arrest Bashir when he was on their territory.
If this precedent is repeated in Libya, it risks establishing a parallel, extra-judicial process. This could pose a serious challenge to the ICC given that the ICC has no police force to implement arrest warrants and thus the ICC relies on the cooperation of states for the transfer of suspects to proceed with trials. It is therefore crucial for the maintaining of international justice that the ICC arrest warrants are implemented through the transfer of the three suspects to The Hague.