By Nigel Ash
London, 21 May 2014:
In losing its appeal that it, rather than the International Criminal Court should try Saif Al-Islam . . .[restrict]Qaddafi, Libya could be on collision course with the United Nations Security Council, if Qaddafi’s son is not handed over.
Under Article 87 of the Rome Statute which established the ICC and to which Libya is not a signatory, the court could issue a finding of non-cooperation. It would then refer Tripoli to the United Nations Security Council which under Resolution 1970 had empowered the ICC to investigate Qaddafi-regime officials suspected of war crimes and crimes against humanity.
The Security Council could impose a range of penalties including sanctions.
Today’s decision, delivered by Presiding Judge Erkki Kourula, was the final throw for the Libyan authorities. There is no further appeal. A year ago the ICC Pre-Trial Chamber rejected Libya’s contention that it could investigate and prosecute Saif by itself. A further issue for the court was that Saif was not facing the same charges in Libya as at the Hague where he has been indicted for war crimes and persecution. Nevertheless the court gave Libya leave to challenge the finding which it did, lodging an appeal last May.
Saif, who is held in Zintan, is currently on trial in Tripoli, along with other ex-regime personalities, via a video link. Zintani authorities have also charged but not yet tried him for attempting to escape.