The Primary Reason Why Libya’s Admissibility Challenge Must Fail

In my earlier post on Libya’s admissibility challenge, I explained how the Libyan government’s failure to provide Saif with due process could be relevant to the admissibility of the case against him.  There is, however, a far stronger argument against Libya’s admissibility challenge, one that I’ve discussed before: namely, that Article 17(3) deems a case admissible if “the State is unable to obtain the accused,” and Libya is unable to obtain Saif from the Zintan militia that has him in custody.  The OPCD’s response makes the argument at length, with considerably more information than has appeared to date.  (I just wish the OPCD had foregrounded the argument more clearly in the motion; it doesn’t appear until page 80).  Here are the relevant paragraphs:

358. Libyan law does not permit in absentia proceedings unless the accused is outside the country itself Unless the defendant is transferred to the custody of the prosecuting authorities in Tripoli, it will not be possible for the case to proceed.

359. Although the Libyan authorities have made various announcements over the course of the last eight months that Mr. Gaddafi’s transfer to Tripoli was imminent, it has not occurred. Moreover, in light of the fact that the Pre-Trial Chamber has ordered the Libyan authorities to give them reasonable advance notice of any such transfer, it does not appear that it will occur before this challenge is judicially determined.

360. For their part, the Zintan brigade has evidenced a clear unwillingness to transfer Mr. Gaddafi to Tripoli at this point in time due to security concems, which will not resolve themselves in the near future. On 28 May 2012, Dr. Gehani confirmed that the Zintan brigade remained unwilling to transfer Mr. Gaddafi to Tripoli, and on 2 July 2012, the Commander of the Zintan brigade confirmed this stance.

361. Article 17(3) of the Statute expressly lists the inability of the State to obtain custody of the defendant as grounds for declaring the case to be admissible before the ICC. In the Kony et al. case, the Pre-Trial Chamber’s confirmation of the admissibility of the case was predicated on a statement from Uganda that although the judiciary was fair and impartial, it did not possess the means to secure the arrest of the defendants. It should be noted that for the purposes of admissibility proceedings, the Chamber is only examining whether the State meets the relevant criteria; it does not consider whether the ICC can.

362. Since the Chamber must base its determination on the facts in existence at the time of the challenge, the admissibility challenge must be rejected due to the fact that the Libyan authorities currently lack the ability to exercise jurisdiction over Mr. Gaddafi before their courts in Tripoli.

363. Even if Mr. Gaddafi is transferred to Tripoli, the Libyan authorities clearly lack the capacity to ensure that he will not escape, or be tortured, killed, or otherwise mistreated.

364. In terms of the first aspect, the Zintan brigade has repeatedly cited their concern that the current authorities in Tripoli lack the capacity to ensure that pro-Gaddafi supporters do not attempt to liberate him. The former spokesperson of the NTC also opined that due to widespread practices of corruption in detention centers, if sent to Tripoli, there was a high probability that the detention guards could be bribed to release Mr. Gaddafi.

Two brief comments.  First, with regard to paragraph 364, I’m not sure whether the possibility that Saif would escape or be liberated is formally relevant to Libya’s admissibility challenge.  Article 17(3) speaks of “obtaining” a suspect, not keeping him, and the OPCD itself acknowledges (in para. 362) that the Pre-Trial Chamber should not speculate about possible future events when making an admissibility determination.  That said, the possibility of escape or liberation certainly does support the OPCD’s claim that the Zintan militia has no intention of turning Saif over to the NTC.

Second, I continue to be frustrated by the Office of the Prosecutor’s equivocation concerning Libya’s admissibility challenge.  In its June 5 response, it briefly raised the possibility (para. eight) that the Zintan militia’s control over Saif “suggest[s] the possibility that in the current circumstances the Government of Libya may be unable to move the case forward.”  In light of the facts presented in the OPCD’s response, that seems to be something of an understatement.  I understand that the OTP would prefer Saif to be tried domestically (if only because Libya’s admissibility challenge has been a sham from the beginning, as the NTC has made clear that it will not comply with a judgment against it).  But at some point the OTP has to insist on the strict application of Article 17 — and especially paragraph 3, which is one of the only clear requirements in the Article.