The OTP Makes a Serious Legal Error Concerning Libya and Saif

by Kevin Jon Heller

The OTP has weighed in on Libya’s ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error. Here are the relevant paragraphs (emphasis mine):

42. However, the Prosecution also notes that not all detention centers, including apparently the one holding the suspect in this case, are under the control of the Minister of Justice and Libya has no access to certain detainees held in these centers. Further, abuses and deaths have occurred in detention centers in 2012,

43. Most notably, Libya does not clarify whether it has gained custody over Saif Al-Islam and when his transfer to Tripoli will be effected

44. Nonetheless, the investigation of the case against Saif Al-Islam has progressed and the Libyan legislation does permit a trial in absentia. Hence, and in light of the evidence submitted and notwithstanding the challenges faced by Libya as a post-conflict country, the Prosecution concludes that Libya appears, at this time and in light of the materials considered, able to conduct the proceedings.

Libyan criminal law may permit a trial to be held in absentia, but the Rome Statute does not. Article 17(3) of the Rome Statute is explicit on this point — a state cannot be considered “able” to prosecute a defendant if it does not have that defendant in custody (emphasis mine):

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it actually effectuates Saif’s transfer, therefore, its admissibility challenge must fail.

4 Responses

  1. And under human rights law (e.g., CIL reflected in art. 14 of the ICCPR and Geneva Protocol I, art. 75) a “trial in absentia” could be no more than an indictment in absentia.  Such CIL is a necessary background for interpretation of the Rome Statute.

  2. Kevin, I think the serious (and frankly pretty basic) legal error in statutory interpretation is yours, not the OTP’s.

    The Statute is clear that a State’s inability to arrest an accused is only relevant to a determination of “inability” under Art 17(3) when the inability to arrest is “due to a total or substantial collapse or unavailability of its national judicial system”. For some reason, you chose to completely ignore this modifying phrase when making your argument.

    In this case, Libya’s failure to arrest Saif does not appear to be “due to” a total or partial collapse or unavailability of its legal system. Therefore, Libya’s inability to arrest Saif should not be considered by the Court in determining “inability” under Article 17(3) and Libya’s admissibility challenge will not fail on these grounds.

  3. CM,

    That is incorrect.  The national judicial system is “unavailable” in Saif’s case, because the national government does not have control over the entire territory of Libya and, in particular, does not have control over the territory where Saif is being held.  As a result of that unavailability, the national government has no means to ensure that Saif is transferred to the national judicial system for trial.  Hence Libya is, at least at present, “unable” to try Saif.

  4. thanks to your inquire: actually we don’t forget the original of referral , that the SC referral the situation in Libya , so the government of Libya cant challenge to the admissibility of the case against Saif Gaddafi , according to the ICC statute the principles of complementary  didn’t work in the SC referral.

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