Libya’s Says It Can’t Surrender Saif — But It Can Prosecute Him

by Kevin Jon Heller

Just when I thought its position couldn’t get more ridiculous, Libya argues the following — presumably with a straight face — in response to the defence’s complaint that it is violating its obligation to surrender Saif to the ICC:

It is clear, as Mr. Gaddafi noted in the Request, that the issue of admissibility – in particular ability to pursue a domestic criminal process – is distinct from that of whether there is a failure to comply with the co-operation provisions of the Rome Statute. Libya has submitted on appeal that “the central Libyan Government [is] exercising its authority in Zintan in relation to the domestic
proceedings alongside the Zintan Brigade, which is responsible for supervising his detention.” It has submitted further that the progressive integration of the local authorities into new Libyan democratic institutions, and the negotiated transfer of Mr. Gaddafi from Zintan to Tripoli, is taking place “in a transitional context where the consolidation of the State is necessarily a complex and gradual process.” Libya has submitted that these circumstances do not constitute inability “to obtain the custody of Mr. Gaddafi”, at least at the investigative stage of proceedings. Equally, they do not constitute bad faith on the part of Libya in “deliberately refusing” to surrender Mr. Gaddafi as alleged by the Defence.

Translated: Libya has enough control over Zintan that it cannot be deemed unable to prosecute Saif, but not enough control over Zintan for it to be found in violation of its obligation to surrender Saif to the Court. Now that’s chutzpah!

The next Libyan motion will no doubt claim that the government cannot transfer Saif to the ICC because the dog ate its transfer order.

http://opiniojuris.org/2013/08/16/libyas-says-it-cant-surrender-saif-but-it-can-prosecute-him/

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