Brussels — Libya should abide by the International Criminal Court's (ICC) decision on May 31, 2013, and turn over Saif al-Islam Gaddafi to the court.
The court's rejection of Libya's bid to prosecute Gaddafi, the son of Muammar Gaddafi, nationally obligates the authorities there to surrender him immediately for proceedings in The Hague unless, in case of an appeal, the ICC judges say otherwise. The ICC judges held that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC and that it was able genuinely to carry out an investigation of Gaddafi.
"Libya has until now operated according to the ICC's procedures as the UN Security Council required when it referred events there to the court," said Richard Dicker, international justice director at Human Rights Watch. "By respecting the ICC's judicial process, the authorities will send an important message about their commitment to the rule of law."
Gaddafi is wanted by the ICC for crimes against humanity for his alleged role in trying to suppress the 2011 uprising that led to his father's overthrow. The ICC judges had been considering a legal bid by Libya to prosecute Gaddafi nationally for these crimes.
If a concerned country wants to try an ICC suspect itself for the crimes covered by an ICC arrest warrant, the authorities may challenge the court's jurisdiction over the case through a legal submission called an "admissibility challenge." On May 1, 2012, Libya challenged the admissibility of the ICC case against Gaddafi and was granted permission to postpone his surrender to the ICC, pending a decision by the court's judges on the challenge.
At the time, the ICC judges made clear that Libya had to take all necessary measures during the postponement period to ensure that Gaddafi could be immediately surrendered to the ICC if it rejected Libya's challenge.
Security Council resolution 1970, which referred the situation in Libya to the ICC, requires the Libyan authorities to cooperate fully with the court - a binding requirement under the United Nations Charter, even though Libya is not a party to the treaty that established the court. This cooperation includes abiding by the court's decisions and requests as well as adhering to the court's procedures. Members of the UN Security Council, who unanimously gave the ICC jurisdiction to investigate the situation in Libya, should send a strong message to the authorities there to cooperate with the court, Human Rights Watch said.
Libya has promised to abide by its obligations. In a recent submission to the ICC, Libya said it "does not dispute that it is bound by Security Council Resolution 1970." In a letter to the Security Council on June 20, 2012, the Libyan National Transitional Council (NTC), then the ruling authority, reiterated its commitment to cooperate with the ICC. The NTC had also pledged its cooperation in a November 2011 letter to the ICC judges and an April 2011 letter to the ICC prosecutor.
In its admissibility challenge, Libya said that it was actively investigating Gaddafi for the same underlying allegations of murder and persecution that form the basis for the ICC arrest warrant against him. Libya said that it was willing and able to investigate Gaddafi and, as appropriate, to prosecute him.
In line with the Rome Statute, the ICC's founding treaty, "either party" may appeal within five days of notification of the May 31 admissibility decision. The appeal itself will not have suspensive effect on the decision unless so ordered by the appeals judges upon request.
The ICC is also considering a challenge to the court's jurisdiction to try another Libyan ICC suspect, Abdullah Sanussi, the Gaddafi-era intelligence chief. Libya says it is investigating Sanussi for his role during the government's 2011 crackdown on protests and prior alleged corruption. Libya also contends that the scope of its Sanussi investigation extends back to the 1980s into serious human rights violations committed during Gaddafi's rule, including the June 1996 killing of more than 1,200 prisoners in the Abu Salim prison, in Tripoli. As in Gaddafi's case, it is ultimately up to the ICC judges to determine whether national proceedings exist that meet the criteria for a successful admissibility challenge.