Since the Chamber must base its determination on the facts in existence at the time of the challenge, the admissibility challenge must be rejected due to the fact that the Libyan authorities currently lack the ability to exercise jurisdiction over Mr.
It should be noted that for the purposes of admissibility proceedings, the Chamber is only examining whether the State meets the relevant criteria it does not consider whether the ICC can.ģ62. case, the Pre-Trial Chamber’s confirmation of the admissibility of the case was predicated on a statement from Uganda that although the judiciary was fair and impartial, it did not possess the means to secure the arrest of the defendants. Article 17(3) of the Statute expressly lists the inability of the State to obtain custody of the defendant as grounds for declaring the case to be admissible before the ICC. Gaddafi to Tripoli, and on 2 July 2012, the Commander of the Zintan brigade confirmed this stance.ģ61.
Gehani confirmed that the Zintan brigade remained unwilling to transfer Mr. Gaddafi to Tripoli at this point in time due to security concems, which will not resolve themselves in the near future. For their part, the Zintan brigade has evidenced a clear unwillingness to transfer Mr. Moreover, in light of the fact that the Pre-Trial Chamber has ordered the Libyan authorities to give them reasonable advance notice of any such transfer, it does not appear that it will occur before this challenge is judicially determined.ģ60. Gaddafi’s transfer to Tripoli was imminent, it has not occurred. Although the Libyan authorities have made various announcements over the course of the last eight months that Mr. Libyan law does not permit in absentia proceedings unless the accused is outside the country itself Unless the defendant is transferred to the custody of the prosecuting authorities in Tripoli, it will not be possible for the case to proceed.ģ59. (I just wish the OPCD had foregrounded the argument more clearly in the motion it doesn’t appear until page 80). The OPCD’s response makes the argument at length, with considerably more information than has appeared to date. There is, however, a far stronger argument against Libya’s admissibility challenge, one that I’ve discussed before: namely, that Article 17(3) deems a case admissible if “the State is unable to obtain the accused,” and Libya is unable to obtain Saif from the Zintan militia that has him in custody. In my earlier post on Libya’s admissibility challenge, I explained how the Libyan government’s failure to provide Saif with due process could be relevant to the admissibility of the case against him.
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