20 Nov Decision Time for Libya and the ICC
ZINTAN, Libya (AP) – Libya’s new leaders said Sunday they will try Moammar Gadhafi‘s son at home and not hand him over to the International Criminal Court where he’s charged with crimes against humanity. The government also announced the capture of the toppled regime’s intelligence minister, who is also wanted by the court.
As I suggested in an earlier post, Libya does have an obligation under UNSC Res. 1970 to cooperate with the ICC Prosecutor, and this obligation probably includes the obligation to turn over alleged war criminals. To be sure, Libya might be able to avoid the obligation to surrender Seif Qaddafi if it tries Seif Qaddafi itself, which it says it is planning to do. But there is a good argument that it has to turn him over first, and then file a challenge to the admissibility of the case on the grounds that it is now willing and able to try Seif Qaddafi himself. This is a procedural point, but an important one. And since Libya apparently has no real court system, there is little chance of them getting him back once they turn him over. So it is not surprising they will hold on to their prisoner, and start the bargaining process with the ICC and the UNSC.