The International Criminal Court (ICC) has recently heard opposing arguments on issues surrounding the Court’s indictment of Saif Al Islam Gaddafi, son of former Libyan leader Muammar Gaddafi; and Colonel Abdullah Al-Senussi, former head of the Libyan Military Intelligence. Gaddafi and Al-Senussi are accused of two counts of crimes against humanity. The bone of contention between the ICC and Libya is a question of jurisdiction — who should try the two accused? The answer lies at the heart of the Rome Statute, and for many International Law Scholars, the matter should not even have reached a hearing before the Court.
At the heart of the Rome Statute, which established the ICC, is the Principle of Complementarity. Paragraph 10 of the preamble and Article I of the Rome State emphasize that the ICC shall be complementary to national criminal jurisdictions. It is very clear that preliminary jurisdiction over the accused falls within the national criminal jurisdiction of Libya. Most international lawyers are very surprised, then, that the ICC is consistently trying to usurp jurisdiction from a sovereign state.
Article 17 of the Rome Statute states that the Court shall declare a case inadmissible when the case “is being investigated or prosecuted by a state which has jurisdiction over it,” and “unless the state is unwilling or unable genuinely to carry out the investigation or prosecution,” the Court has no business predetermining the strength of the tribunals of sovereign nations.
Libya has emphasized its willingness to investigate and prosecute the accused for crimes committed at home, and the ICC is insistently trying to usurp the case. The ICC is determined to put the Libyan judicial system on trial even before the country has a chance of proving its commitment to democracy and justice. It makes a bad precedent that an international institution such as the ICC is basically trying to predetermine the ability of a sovereign nation to administer justice when there are no facts to doubt that the accused will not have a fair trial in Libya.
In addition to the principle of complementarity, criminal justice and pragmatism requires the accused to face the people of Libya. The Gaddafi regime was overthrown in a popular revolt and the people of the country deserve a summation to their revolution by having those responsible put on trial at home. What use does it serve the Libyan people to ship their accused to The Hague when their national tribunal assures us that it is capable and willing to render justice both for the accused and the people of Libya? There may be doubts, but the ICC has no business usurping Libyan national criminal process. The Court should dismiss the case and allow the Libyan judicial system to proceed.