A Deal to Try Saif in Libya?

I have no idea whether it’s true, but that’s what the BBC is reporting:

The International Criminal Court could soon drop its demand that Saif al-Islam Gaddafi be transferred to the Hague for trial, officials have told the BBC.

They say the most prominent son of the former Libyan leader Muammar Gaddafi could instead be tried inside Libya but under the supervision of the ICC.

The argument over who should try him has been going on ever since he was captured in November last year.

The ICC has indicted him for crimes against humanity.

Now the Libyan justice ministry says a deal is being finalised where Mr Gaddafi can be tried in Libya but with security and legal supervision by the international court.

The BBC’s Jon Donnison, in the Libyan capital Tripoli, has been told by a western official with good knowledge of the case that a deal is close to being agreed.

The article raises a number of questions.  What would the charges be?  Would the ICC impose a de facto complementarity requirement on Libya, conditioning any deal on Libya’s willingness to prosecute Saif for the same crimes against humanity, murder and persecution, based on the same conduct for which the arrest warrant was issued?  Or would the ICC be willing to allow Libya to prosecute Saif for “ordinary” crimes (i.e., not international) based on the same or different conduct as long as the charges were adequately serious?  (An approach to complementarity that I have defended here.)  How, exactly, would the ICC “supervise” the trial?  Are we simply talking some sort of positive complementarity, whereby the Court would provide the Libyan court system with training and the like?  Or would the ICC have the right to insist on specific rules of evidence, due-process guarantees, and so forth?

There is also the question, of course, of how to reconcile a potential deal with the Rome Statute.  As I read the Statute, because the charges have not yet been confirmed, the OTP would have the right to discontinue the arrest warrant; Article 61(4) provides in relevant part that “[b]efore the [confirmation] hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges.”  But if the OTP withdrew the charges against Saif, what leverage would it have to ensure that Libya lived up to its end of the deal?  If Libya broke one of its promises to the Court, I think that the OTP’s only remedy would be to seek a new arrest warrant for Saif and then try to convince the Libyan government to honor it — which it clearly wouldn’t, given its attitude toward the first arrest warrant.

The bottom line: if the BBC report is accurate, the OTP would obviously be trying to make the best of a very difficult situation.  Would ensuring that the ICC has at least some role in a national trial be a good idea?  To be honest, I’m not so sure.  I think it is very unlikely that Saif will get a fair trial in Libya, ICC involvement or not.  Any deal between the ICC and Libya, therefore, would means that the Court would be on the hook for the results of the trial — if it turns out to be a fiasco, the Court would share the blame with the Libyan government.  And rightfully so.  Be careful what you wish for, ICC!

Stay tuned…