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Tuesday, February 21, 2012

More on Saif Gaddafi

For readers interested in the fate of Saif Gaddafi, and whether he will be tried in Libya or at the ICC in The Hague, Dapo Akande has an important follow-up post at EJIL Talk.  Dapo brings us up to date on the latest filings at the ICC, including the fact that Libya has not filed an admissibility challenge before the ICC.  The delay is rather inexplicable, although perhaps the National Transitional Council is busy fulfilling their obligations trying to pull Libya together and restoring domestic security.  Perhaps it is impressive that they managed to send a letter to the ICC.

In any event, Dapo extends the discussion with an important analysis of Articles 94 and 95 (and their relationship to each other) of the ICC Statute.  

To remind readers, Dapo and I both argued that Libya may keep Saif in domestic custody pending the outcome of its admissibility challenge at the ICC (if one becomes necessary), while Kevin Heller argued at OJ that Libya has to send Saif to The Hague first and then request his return if it loses its admissibility challenge.

Previous installments of this debate can be found here, here, here, and here.  Is that enough admissibility for you?


Mark Kersten said...

I enjoy the commentary and debate but the debate about obligations of turning Saif in or not seems to be taking place in a legal vacuum, devoid of political analysis. I have some familiarity with the process regarding Saif and nothing tells me that his fate will come down to any provision in the Rome Statute. If the Rome Statute can legitimize Libya holding Saif on trial domestically, then the NTC will likely go for it. If it can't, it will still try Saif domestically. To use a favourite Canadian phrase, "there's a snowball's chance in hell" Saif will end up at the ICC, regardless of what the Rome Statute says. From what I can gather, the OTP fully understands that. The one party that could affect the NTC's position towards the ICC - the NATO intervening forces - have stayed silent on the subject. Taken together, there is virtually no pressure and no overwhelming incentive that I can think of for the NTC to respect its obligations under the Rome Statute. Unsurprisingly, a recent report suggested that the ICC was "the last thing of Tripoli's mind".

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