ICC judges: about that Saif Gaddafi fellow…
I’ve written several times before on the vexed question of precisely what Libya’s obligations are to the International Criminal Court (ICC) as regards Saif Gaddafi, for whom there is an outstanding arrest warrant. The ICC prosecutor made a widely publicized trip to Libya shortly after Saif’s capture to discuss cooperation, and that sojourn ended with ...
I've written several times before on the vexed question of precisely what Libya's obligations are to the International Criminal Court (ICC) as regards Saif Gaddafi, for whom there is an outstanding arrest warrant. The ICC prosecutor made a widely publicized trip to Libya shortly after Saif's capture to discuss cooperation, and that sojourn ended with vaguely positive pronouncements. But the days have ticked by without much greater clarity.
I’ve written several times before on the vexed question of precisely what Libya’s obligations are to the International Criminal Court (ICC) as regards Saif Gaddafi, for whom there is an outstanding arrest warrant. The ICC prosecutor made a widely publicized trip to Libya shortly after Saif’s capture to discuss cooperation, and that sojourn ended with vaguely positive pronouncements. But the days have ticked by without much greater clarity.
The ICC has no interest now in heightening the appearance of conflict with Libya’s new government. But ambiguity can only extend so far, and the ICC’s judges have some pointed questions now for Libya (h/t James Goldston):
[T]he Chamber seeks from Libyan authorities, on an urgent basis, information on the following issues: (i) whether Saif Al-Islam Gaddafi was arrested on account of the Court’s warrant of arrest; (ii) whether the information received by the Chamber as to Saif Al-Islam Gaddafi being held incommunicado is true; (iii) when and where could the Registrar, or one of her representatives, meet Saif Al-Islam Gaddafi in order to seek his views on being assigned counsel from the Court for purposes of proceedings before this Court, (iv) how, when and where could an expert be mandated by the Court to examine Saif Al-Islam Gaddafi in order to assess his physical and mental state and (v) whether and when the Libyan authorities intend to surrender Saif Al-Islam Gaddafi to the Court.
The court likely wants to know on what basis Saif has been arrested because of Article 94 of the Rome Statute. As a knowledgeable reader pointed out to me recently, that provision deals with cases in which a person faces both an ICC arrest warrant and national proceedings for other crimes:
If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State.
Article 94 could give Libya room to hold and maybe even try Saif for crimes other than those related directly to the violence earlier this year. But, so far as I can tell, Libya hasn’t made clear the precise crimes for which it would prosecute Saif and so it’s not not clear that the provision applies.
David Bosco is a professor at Indiana University’s Hamilton Lugar School of Global and International Studies. He is the author of The Poseidon Project: The Struggle to Govern the World’s Oceans. Twitter: @multilateralist
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