Does the New Libya Have to Surrender Gaddafi to the ICC?

Does the New Libya Have to Surrender Gaddafi to the ICC?

Let’s assume that the Libyan rebels do prevail and that they end up capturing Libyan dictator Muammar Gaddafi.  Does the new Libyan government have a legal obligation to turn him over to the ICC, even if they seek to try him in Libyan courts?

Libya is not a member of the ICC Rome Statute, so its only obligation flows from the U.N. Security Council’s Resolution (UNSC 1970) referring Libya’s case to the ICC.  The relevant paragraph makes clear that Libya must cooperate with the ICC prosecutor.

5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

But does this obligation to cooperate really entail turning over an alleged criminal, especially one whom you plan to try yourself? And if it does, should the UNSC’s “plenary” power under Chapter VII really extend this far?  Alison Cole argues here that the IL is pretty clear, but I’m not so sure. Certainly, the text of the U.N. Charter Article 41 is not crystal clear on this point.

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

I suppose this could be read to include surrendering alleged war criminals (and I’m sure it has been read in this light).  I think that, at least as a textual matter, this is still an open question. Are there other provisions that the UNSC and the ICC Prosecutor would rely on to demand the new Libyan government’s acquiescence?

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Courts & Tribunals, International Criminal Law
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Kevin Jon Heller


Why is this an open question, textually?  Nothing in Article 41 suggests that the SC cannot require a state to cooperate with an international tribunal — the text is deliberately open-ended and non-exclusive.  Do you think the SC did not have the authority to create the ICTY and ICTR?  If you don’t think the SC can require state cooperation, I don’t see how you can believe that the ad hocs were legitimate.

And of course Libya can try the Gaddafis itself.  It simply has to challenge admissibiltiy on the ground that is conducting a legitimate investigation of them and has the capacity to conduct a genuine prosecution.  It’s not even clear from the Rome Statute that Libya would have to turn them over to the ICC first.