Decision Time for Libya and the ICC

Decision Time for Libya and the ICC

Reports are a little uncertain, but it sounds like Libya will not comply with the ICC Prosecutors’ arrest warrant and turn over Muammar Qaddafi’s son Seif al-Islam el-Qaddafi.

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.

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Courts & Tribunals, International Criminal Law
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Mark Kersten

With today’s visit by Prosecutor Moreno-Ocampo to Libya it does appear that an ICC trial in Libya is an option that will be discussed. Kevin has suggested he supports this idea as have David Kaye and Stewart Ford. I added my voice in support as well. More importantly, however, the ICC itself appears to be inclined to support the notion and has suggested so publicly (

The question, it seems, is whether the ICC is restricted, in this instance to an agreement which allows it to run proceedings in Libya or whether it is able to enter into some form of justice-sharing agreement with Libyan authorities to establish a type of “hybrid tribunal” with both ICC and Libyan judges. While the Rome Statute envisioned the possibility of a “traveling Court” it appears silent on the issue of establishing temporary hybrid type institutions. A question for lawyers I am sure!

Jens David Ohlin

I’m interested in this idea that Libya has an obligation to turn him over first and challenge admissibility later.  Not sure I fully understand this argument.  Is the source of the obligation a procedural rule in the ICC RPE? Or is it simply because of the binding nature of the SC-imposed obligation of cooperation?  Or is it Rome Statute Article 19(9)?
I have just blogged about the possibility of “positive complementarity” in this situation, though I may need to write another post just on this interplay between custody of the accused and challenging the court’s jurisdiction.

Mark Kersten


I’m interested in this question as well and wouldn’t mind seeing some clarity on the subject. I have only read that the obligation to turn him over stems both from a reading of the UNSC Res 1970 (Libya’s all state’s obligation to cooperate with the Court) as well as a the ICC’s procedures (only ICC judges can adjudicate on an admissibility challenge unless there is a deferral by the UNSC). Moreno-Ocampo has stressed the latter more than the former, consistently declaring that “ICC judges have to be involved.” However, he has also seemingly conceded that the trial of Senussi and Saif will be held in Libya – a power which, I understand, he does not have and which would contravene the idea that it is the judges who must rule on the issue. In any case, I look forward to your post and will add your blog to the blogrole at JiC.

Mark Kersten

FYI – Jens and others interested in the source of the alleged obligation may be interested in a post from David Bosco on the subject (click here)