As legal scholars continue to sort out the intricacies of the complementarity regime governing the legal jurisdiction of the ICC and the Libyan national court system, there is a brewing issue of contention on the horizon. Will Libyan officials seek the death penalty for Saif Gaddafi and former intelligence chief Abdullah al-Senoussi?
To restate the obvious, the ICC does not impose the death penalty, nor do any of the international criminal tribunals currently in operation. They all have the same sentencing regime: convicted defendants are eligible for any prison term (including life) that the trial judges determine to be appropriate. However, Libyan officials may indeed decide to pursue a capital case against Saif or Senoussi. The question is whether this fact will complicate – either legally or politically -- the negotiations currently underway between Libyan officials and the ICC Prosecutor, or any ICC determination on its jurisdiction.
Here is one possible argument. The ICC can assert jurisdiction over a case if national courts are unwilling or unable to prosecute a suspect. Traditionally, unwillingness has been interpreted to mean failure to prosecute or failure to adequately punish. So legal scholars have debated whether the ICC could take jurisdiction over a case if the national court prosecuted a defendant but then refused to punish him, or refused to punish him adequately. Think, for example, of giving someone house arrest for genocide, or a monetary fine for crimes against humanity. Most scholars assume that such a blatant miscarriage of justice would be evidence that the state is unwilling to genuinely prosecute the defendant, and would provide a reason for the ICC to take jurisdiction.