The following is a guest post kindly contributed by Belachew M Fikre, Addis Ababa University, Centre for Human Rights.
On Wednesday 4th April 2012, a strong statement by the Hague-based International Criminal Court (ICC) has urged the Libyan transitional government to hand over the former dictator’s son and London School of Economics graduate, Saif al-Islam, in compliance with the cooperation duty imposed upon it by the United Nations Security Council Resolution 1970. Six months after Saif’s arrest the National Transitional Council (NTC) is yet to start the framing of charges and trial of its prime suspect, accused of committing war crimes while working in his capacity as the heir-apparent of his dictator father. The ‘concrete’ step that the Council has taken so far is the preparation and servicing of aprison cell dubbed ‘a holiday resort’ by one of its guards owing to its luxurious conditions. The prison, which is meant to accommodate just Saif al-Islam, will have a basketball and football court, a private mosque, 24-hour medical cover, satellite TV and its own chef. This is meant to relocate the suspect from the town of his captors, Zintan, where he remains detained since his arrest.
It looks doubtful the Zintani militias would cooperate with the central governance apparatus, let alone with the ICC, in handing over Saif al-Islam. What, therefore, the ICC’s statement could do is at best engage the NTC, which has so far been preoccupied with the tasks of preparing the first-ever June election, together with attempts to contain the tribal skirmishes that have become the order of the day in post-Gadhafi Libya. The Council is also under huge pressure in trying to deal with the self-appointed militia men that have proved increasingly difficult to disarm and demobilise.
In the presence of all these murky conditions of transition, and considering the symbolic significance for the local justice system having Saif al-Islam’s trial before his own people, one could question whether six months would be a long enough period to consider the local criminal justice machinery as ‘unable’ to conduct the trial domestically. I have omitted the ‘unwilling’ bit of the phrase under Article 17 of the ICC Statute because the ‘will’ of the NTC has consistently been loud and clear in expressing its utmost willingness and determination to bring him to justice through a fair trial once the preparations are complete. According to Article 17(1)(a) of the statute, a case shall be rendered inadmissible before the ICC where it is ‘being investigated or prosecuted by a State which has jurisdiction over it.’ Thus, the ICC only enjoys a subsidiary jurisdiction in the sense that a matter that falls under its jurisdiction may be excluded when there is a domestic proceeding that vigilantly handles the investigation, prosecution and trial of acts alleged to have been perpetrated within its own territory. The ICC can reclaim the process where the state concerned is ‘unwilling or unable to genuinely carry out the investigation or prosecution.’
The invocation of the learned principle ‘justice delayed is justice denied’ pointing to the unwillingness or inability of the Libyan state, strictly speaking, is not convincing at this point in time. It could even be more appropriate for the new government, to be established after the June election, rather than the NTC, to carefully carry out the process of trial and prosecution so that it would not create a sense of ‘victors’ justice’ as it may if handled in haste now. It is to be recalled that the Hague-based Court had extended its January deadline to February and that it had given to the Libyan authorities to express their decision to hand Saif al-Islam over to the court, which has not been complied with so far.