By Nigel Ash
Tripoli, 31 May 2013:
The International Criminal Court has thrown down a direct challenge to the Libyan government by rejecting . . .[restrict]its claim that Saif Al-Isam should be tried in a Libyan court on charges of crimes against humanity . It has also demanded Qaddafi’s son by handed over.
The court said it had concluded that Libya had not demonstrated that its own investigation into Saif’s alleged crimes “ cover the same case that is before the Court.”
In May last year Libya had sought to persuade the ICC that it should not hear Saif’s case. In today’s ruling rejecting that submission, the judges noted that such a challenge to its jurisdiction would not be granted, if the state concerned was unwilling or “unable genuinely to carry out the investigation or prosecution.”
The court went on to reminded Libya that it is obliged under the Rome Statute, to hand Saif over to the ICC for trial in the Hague.
The judges said that they recognised Libya’s “significant efforts to rebuild institutions and to restore the rule of law.” However they went on that the Libyan state still faced substantial difficulties in exercising full judicial powers across the entire country.
In particular, it noted that Saif was still held in Zintan and had not been transferred to state custody. It added “Impediments remain to obtain the necessary evidence, and secure legal representation for Mr Gaddafi.”
In June last year, Saif’s defence council appointed by the ICC, Australian Melinda Taylor, was detained for 26 days in Zintan with three colleagues after a first visit to her client. She was accused of passing secret documents to him. Taylor later said that it would be impossible for Saif to receive a fair trial. She also accused the ICC of doing a behind-the-scenes deal with Libya over Saif and giving a “green light” for ICC rules to be flouted.
Today’s pre-trial ruling by three judges presided over by Judge Silvia Fernandez de Gurmendi noted “The Libyan authorities may appeal this decision or submit another challenge to the admissibility in accordance with article 19(4) of the Rome Statute.”
Such an appeal or new submission seems inevitable. However the affair has been complicated by the decision of the Zintanis this January to bring a fresh charge against Saif, that he tried to escape. The argument may well be made in Zintan that Qaddafi’s son should first be prosecuted over this allegation before any thought is given to a trial for crimes against humanity, whether that is held in Tripoli, in the special court room that was finished at the start of this year, or in the Hague before the ICC.