This past week has seen several important developments for the International Criminal Court (ICC).
Libya. The two remaining subjects of arrest warrants have been apprehended in Libya by militia groups, but have not been turned over to the ICC, and the Court and the National Transitional Council have been engaged in a dispute as to whether they should be turned over or tried in Libya, which does not have a functioning judicial system.
On April 4th an ICC Pre-Trial Chamber rejected the second request by the National Transitional Council to postpone the ICC’s surrender request for Saif Al-Islam Gaddafi pending the completion of proceedings against him in Libya. The Chamber, therefore, stated that Libya must (i) make its decision to grant the Surrender Request; (ii) afford Mr. Gaddafi the procedure described in Article 59 of the [Rome] Statute which necessarily follows from arresting a person subject to a surrender request; and (iii) start making arrangements in preparation for the surrender of Mr. Gaddafi to the Court without further ado.”
Article 59 provides the subject of an arrest warrant has the right to a prompt hearing before the competent national judicial authority to determine that the warrant applies to the individual, his/her arrest has been in accordance with proper process and his/her rights have been respected. There is also a right for the individual to apply for interim release, which in this case seems exceedingly unlikely to be granted by any authority.
Palestine. On April 3rd the Office of the Prosecutor released a report about its preliminary examination of the Situation in Palestine. It said the ICC’s jurisdiction is not based upon the principle of universal jurisdiction. Instead, the Rome Statute requires that the U.N. Security Council or a “State” provide jurisdiction by becoming a State Party or by making an ad hoc declaration accepting the Court’s jurisdiction.
Here, the statement said the Prosecutor was not the proper person to make a determination as to whether Palestine was a “State” for purposes of the ICC. That was a decision, the statement concluded, that had to be made by “relevant bodies of the [U.N.]” or by the ICC’s Assembly of States Parties.
Guatemala. On April 2nd the U.N. received from the Government of the Republic of Guatemala its instrument of accession to the Rome Statute. The Statute will enter into force for Guatemala on 1 July 2012, bringing to 121 the total number of States Parties, 27 of which are from Latin America and the Caribbean
Comment: Libya To Defy ICC Order to Turn over Gaddafi to ICC
Libya is reported ready to defy the ICC order this week to turn over Saif Al-Islam Gaddafi to the ICC.
Instead, Libya apparently is planning to start a trial of Mr. Gaddafi on April 13th for allegedly failure to have licences for two camels, and cleaning of fish farms”.
Stephen, Libya to defy UN on handing over Saif Gaddafi, documents reveal, Observer (April 8, 2012), http://www.guardian.co.uk/world/2012/apr/07/Libya-saif-gaddafi-war-crimes-hague.
Comment: Speedy Libyan Trial for Seif-al Qaddafi
On April 9th Libya’s Transitional National Council stated that Seif-al Qaddafi would be put on trial in Libya on charges of murder, rape and corruption and that there would be a verdict by mid-June of this year. Qaddafi currently is in jail in the southern part of the country, but would be transferred to Tripoli within 10 days. All of this is in defiance of the pending International Criminal Court’s warrant for his arrest on charges of crimes against humanity.
Associated Press, Speedy Trial Planned for a Son of Qaddafi, N.Y. Times (April 9, 2012).