The OTP Retracts Its Statement About in Absentia Trials
I noted a few days ago that the OTP made a serious legal error when it suggested that Libya’s challenge to the admissibility of the case against Saif could succeed even if Libya had to try Saif in absentia. Fortunately, the OTP has recognized its mistake and withdrawn its submission:
The Prosecution wishes to retract its reference to the possibility of conducting trials in absentia in Libya. Article 17(3) of the Statute indicates that “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 proceedings”. Hence, Libya will not be able to conduct the proceedings within the terms of Article 17(3) if it cannot get custody of Saif Al-Islam as a result of “a total or substantial collapse or unavailability of its national judicial system” and the possibility of conducting a trial in absentia is not relevant for such determination.
This is absolutely correct, and the OTP deserves credit for being willing to admit its mistake and correct the record.