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Involvement in Libya

The Libya Conflict developed from long-standing sectarian rivalries in the country, which resulted in an armed clash between autocrat Colonel Muammar Gaddafi's supporters and those seeking to oust him from power. In a bid to end the unrest, Gaddafi's son, Saif al-Islam, gave a televised address in which he announced the government would consider adopting a constitution, but warned of civil war if the protests continued. Shortly after, 230 protester deaths were reported, prompting the UN to accuse the Libyan government of committing crimes against humanity, resulting in an investigation by the ICC.

On February 26, 2011, the UNSC voted unanimously to refer the situation in Libya to the ICC. The ICC investigation quickly uncovered evidence of Gaddafi's involvement in the killing of innocent civilians, mass arrests, torture and forced disappearances. In March 2011, Moreno-Ocampo stated that the ICC would bring formal charges against Gaddafi and that no immunity would be granted. On May 16, 2011, Moreno-Ocampo announced that he would seek arrest warrants for Gaddafi, Gaddafi's son Saif al-Islam Gaddafi (the "de facto Prime Minister") and his brother-in-law, Abdullah al-Sanussi. The ICC issued the warrants the following month. Specifically, the warrants alleged that the three men conspired to perpetrate and cover-up crimes against humanity committed between February 15 and February 28, 2011.

On October 20, 2011, Gaddafi was captured and killed by Libyan opposition forces. However, Saif al-Islam Gaddafi and Abdullah al-Senussi reportedly left Libya in order to turn themselves in to the ICC. They were ultimately unsuccessful, as Libyan officials confirmed on March 17, 2012 that they had arrested both Saif al-Islam and al-Senussi; however, Libya refused to hand over custody of Saif al-Islam to the ICC, prompting Moreno-Ocampo to report Libya to the UN for its refusal to comply with its obligations under the Rome Statute.

Under Article 17, the ICC does not have jurisdiction when "[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." Since the Libyan national judiciary was actively investigating Saif al-Islam, Libya argued that the ICC did not have jurisdiction. ICC prosecutor Moreno-Ocampo recognized the historic nature of the case, stating:

This is the first time in the short history of the International Criminal Court that a State is requesting jurisdiction to conduct a national investigation against the same individual and for the same incidents under investigation by the International Criminal Court. The challenge goes to the heart of the system of justice established in 1998 by the Rome Statute: national States have the primary obligation to conduct proceedings and the International Criminal Court's intervention will be complementary.
JURIST Guest Columnist Eric Leonard argued that the ICC should allow Libya to proceed with its own trial:
The real issue is whether Libya has the ability to prosecute. The newly-formed interim government, the Transitional National Council (TNC), is trying to establish some sense of legitimacy in this war-torn state. Their authority is still questionable, while the situation on the ground remains shaky and fluid. So in such an unstable situation, should the Libyan government be provided the opportunity to prosecute such high profile cases? Absolutely. . . . [T]he ICC is a court of last resort. This means that the court should always privilege the principle of complementarity. If Libya can prosecute these cases, this shows the ICC as an effective institution. It also shows that the TNC has some sense of legitimacy and does not need the ICC to clean up its post-revolution mess.
Despite this tension between Libya and the ICC, the case also demonstrates the importance of a permanent international court. JURIST Guest Columnist Leila Hanafi discussed the importance of the support of the international community:
The international community will need to assist Libya in its efforts to establish transitional justice, bearing in mind that some justice mechanisms already exist in Libya, but, also, that there is a shortage of such mechanisms. In this respect, the role of capacity building for civil society organizations cannot be overemphasized, including documentation of human rights violations, protection of victims and witnesses in view of litigation and legislative reform.
The trial was set to begin in June 2012; however, on June 7, 2012, four ICC staff members were detained in Libya during a meeting with Saif al-Islam. Reports emerged that Libyan officials were interrogating the ICC staff members in order to determine whether they had broken the law. The ICC and other UN-backed courts, including the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), called for the staffers' release. Nearly four weeks after the staffers were initially detained, the Libyan government released them with a hearing scheduled for July 23. A lawyer that was among the ICC staffers announced upon release that she did not believe Saif al-Salam could receive a fair trial in Libya.

In June 2013, the ICC pre-trial chamber ruled that the Libyan judicial system was not prepared to handle Saif al-Islam's trial, meaning jurisdiction fell to the ICC. The Libyan government, which may appeal the ICC ruling, was ordered to turn over Saif al-Islam for trial at the ICC.




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