Gaddafi's Son Creates a New Conflict, ICC vs Libya

Although the International Criminal Court (ICC) has issued an arrest warrant for him, Court judges have not yet decided whether the trial of Saif Al-Islam Gaddafi will take place in The Hague or Libya. UN Security Council referred the case to ICC Prosecutor Luis Moreno-Ocampo, followed by the warrant for Saif in June 2011. After months of violence and the death of Moammar Gaddafi (Saif's father), Libyan officials are pushing to hold Saif's trial in their own country and refuse to hand over Gaddafi to the Court or even inform prosecutors of his location. This is causing confusion in the media and showcasing the lack of cooperation between non-member nations and the ICC.

The Security Council referral urged Libyan authorities to "cooperate fully with and provide any necessary assistance to the Court and Prosecutor." Libyan courts say they have the right to try Saif based on their laws and are fighting for the ability to do so. One specific crime cited in the warrants is the charge that Saif was aiding former chief of the Libyan Intelligence Service, Abdullah Al-Senussi, with systematic or widespread murder against a civilian population. Another such crime was persecution against any identifiable group on grounds forbidden under international law. The charges against Gaddafi by Libya's public prosecutor differ from those cited by the ICC and include rape, homicide, and mismanagement of public funds. Saif faces the death penalty if tried in Libya, an absolute contrast to being imprisoned in The Hague.

A fundamental element crucial to the success of the ICC is that nations cooperate with the Prosecutor during investigations and arrest fugitives subject to ICC warrants. The Security Council referred Saif's case to the ICC, which is legally binding even without Libyan membership as a State Party to the Rome Statute. Libya has the right to hold the case within its territory only if the ICC agrees that the government has a capable judicial system in place to hold a fair trial. Amidst rumors that Gaddafi currently has no legal representation present during interrogation, Court judges and the Prosecutor are concerned about the integrity of trial proceedings should they be supervised by Libyan officials. As of this week, the ICC received a confidential document confirming Gaddafi's mental and health state. This decision to wait until the already extended deadline of January 23^rd to communicate with the ICC is hardly a collaborative action.

Causing even more confusion and mistrust, Libyan Minister of Justice Ali Humaida Ashour announced the same day that Gaddafi will face trial in Libya. Several news sources published the decision with Ashour declaring that the ICC had granted permission, "so the trial will be in Libyan under Libyan law." Six hours later, the media reported that the ICC had not made a decision yet. Libyan officials and the Court supposedly have the same goal, justice for the victims in Libya, but have been arguing via the media instead of discussing the situation with one another.

Unfortunately, this situation highlights the difficulties the Court faces when taking action against war crimes and human rights abuses. In order to achieve its vision of global justice, the Court needs compliance from all nations.