The ICC Can Get Its Hands on Gaddafi

by Kevin Jon Heller

Okay, not Saif Gaddafi.  Saadi:

Niger’s President Mahamadou Issofou has said his government is ready to hand Saadi Qaddafi over to the International Criminal Court should the body request it to do so.

To date, the ICC has not issued a warrant for Saadi’s arrest, and will not request his extradition unless that position changes. On 7 November, however, the ICC’s Chief Prosecutor Fatou Bensouda revealed that the court was investigating crimes allegedly committed by both Qaddafi regime members and revolutionaries during last year’s revolution, and may bring a new case in the near future.

Issofou’s offer is likely to infuriate the government in Tripoli, with Libya having issued several futile requests to Niger to hand Saadi over in the past year.

A member of his father’s inner circle, Saadi commanded the regime’s special forces during the revolution and it is claimed that he personally ordered his men to shoot unarmed protesters at the outset of the conflict, an allegation which Saadi denies. On 4 March 2011, Interpol announced it had issued a Red Notice for Saadi’s arrest, although only on charges of theft.

I don’t know whether Saadi’s criminal responsibility warrants prosecution.  Given that Libya has no intention of giving Saif to the ICC even if it loses its admissibility challenge, though, the OTP may want to seriously consider it.

http://opiniojuris.org/2012/11/25/the-icc-can-get-its-hands-on-gaddafi/

5 Responses

  1. Kevin, are you suggesting that the OTP should “seriously consider it” because it would send the right political message to the Libyans, i.e. don’t mess with us? Last I heard, the ICC was still in the business of prosecuting the most serious crimes, not just picking and choosing political fights that could heal bruised egos.

  2. Very interesting development. I wouldn’t be surprised, however, if this is a bargaining tactic by Issofou to drive up the price of Saadi’s extradition to Libya.

  3. If that is the case, the Libyan authorities appear to be doing what they can to signal their intent to negotiate in good faith. Here, the president of the new (elected) General National Congress Mohamed Magarief has been pilloried by protesters for promising USD 200 million in ‘development aid’ to Tunisia:

    http://www.libyaherald.com/2012/11/24/controversy-and-confusion-surrounds-200m-tunisian-loan/

    It seems between the lines that he may be making good on a promise by the pre-election interim authorities that got Gaddafi-era PM Baghdadi Al-Mahmoudi extradited from Tunisia. The parallels with the Al-Senussi case are explicitly drawn in the article. To the Libyans’ credit, they are not taking it lying down, and broader questions have been raised surrounding Mr. Magarief’s exercise of his office in the context of the need to solidify the principle of separation of powers in Libya:

    http://www.libyaherald.com/2012/11/25/opinion-does-libya-have-a-president-now/ 

  4. I believe that the OTP has handled this issue shrewdly thus far. Like Maya stated, The ICC must only bring charges for violations of the most serious crimes. Additionally, the fact that the ICC’s jurisdiction is governed by the principle of complimentarity means that if Libya is willing and able to try Saadi impartially, then they have primary jurisdiction. 

    For the ICC to embark on a prosecutorial campaign against Saadi merely because Niger has expressed a willingness to transfer his would be tantamount to child’s play. The ICC is desperately vying for increased legitimacy and cooperation; to prosecute a Saadi, who is likely only limitedly culpable for war crimes, would be hinder the progress of the ICC. Not to mention, this prosecution raises serious questions about sovereignty and jurisdiction, as Libya has repeatedly stated that they desire and intend to prosecute Saadi in the Libyan National Courts.

  5. Maya,

    As I said, I don’t know whether Saadi’s actions justify prosecution.  But if he was the head of the regime’s special forces during the revolution, as the article (written by a less than trustworthy journalist, to be sure) says, he may well be responsible for serious crimes.  Do you not believe ordering the execution of civilians is an act that, if it happened, is adequately grave?  If it is, I don’t see what is wrong with prosecuting Saadi knowing that the prosecution will also send a valuable message to states about the need to cooperate with the Court.

    Mark,

    Maybe so.  As you know, there is precedent…

    Rhodri,

    Agreed.

    Rocky,

    The prosecution would raise no sovereignty or jurisdiction issue whatsoever.  Libya does not have Saadi.  If he were transferred to the ICC for prosecution, Libya would then have the right to challenge admissibility.  (The benefit being the ICC would have him, so Libya could not simply ignore an adverse decision, as it will if it loses its Saif challenge.) 

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