As I have explained before, Libya’s admissibility challenge must fail if it cannot ensure that the militia in Zintan who have Saif custody will transfer him to the government to stand trial, because Art. 17(3) of the Rome Statute deems a state “unable” to prosecute if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused.” A state’s inability to apply its criminal law to all of its territory is the prototypical example of “unavailability.” Moreover, in a hearing at before the Pre-Trial Chamber last October, the Libyan government admitted on the record that a trial in Zintan on the conduct at issue in the ICC proceedings could not satisfy Art. 17 (pp. 19-20; emphasis mine):
Since the filing of Libya’s 1 May 2012 challenge, the investigation of Mr Gaddafi has continued to progress and other arrangements for his trial have been made by the new government. These arrangements include the building of a courtroom complex and prison facility in Tripoli, which is known as Tajura, and although there’s been some recent contention in the press as to the planned location of any future trial, President el-Magariaf confirmed to the press on 22 September 2012 that there is no prospect of a trial taking place in Zintan due to inadequate courtroom facilities and the other infrastructure that will be needed for a trial.
With each passing day it becomes increasingly clear that Libya has no reasonable prospect of obtaining Saif from the Zintan militia anytime soon. The OTP’s most recent filing makes clear (para. 43) that it is not satisfied that Libya can obtain Saif — skepticism that needs to be taken particularly seriously in light of the OTP’s consistent support for a domestic prosecution. (Which seems to be changing, given the OTP’s most recent filing and a couple previous ones.) And the OPCD’s most recent filing — a withering critique of Libya’s attempts to support its admissibility challenge with anything more than unsubstantiated allegations — provides far more detail concerning Libya’s lack of control over the Zintan milita holding Saif:
270. In January 2012, the Government informed the ICC that arrangements were being made to transfer Mr. Gaddafi to Tripoli. At the beginning of March 2012, the ICC focal point assured the OPCD that Mr. Gaddafi would be transferred from Zintan to Tripoli in a matter of two weeks. In the May 2012 admissibility challenge, the Government indicated that it was “focused on negotiating the safe and orderly transfer of Mr. Gaddafi from a secret location to a specially constructed prison facility in Tripoli”.
271. During the October admissibility hearings, the Government expressed its view that it would not be possible for the trial of Mr. Gaddafi to take place in Zintan due to the lack of appropriate infrastructure. The Government further confirmed that Mr. Gaddafi remained in the custody of the Zintan brigade, but averred that “[o[nce the Prosecutor-General is appointed by the new cabinet, that Prosecutor-General is expected to prioritise working with the Zintan Brigade, to effect the transfer of Mr Gaddafi from Zintan to Tripoli”.
272. Over four months later, a new Prosecutor-General has not been appointed and there is not even a glimmer of the possibility that an agreement will be reached between the Government and the Zintan authorities to transfer Mr. Gaddafi to Tripoli. The Libyan Prime-Minister has even publicly acknowledged that the Government is not pressuring the Zintan authorities to transfer Mr. Gaddafi to Tripoli, and further conceded that the Government lacked the capacity to ensure the security of a trial in Tripoli. Representatives from Zintan have also consistently indicated that they will not transfer Mr. Gaddafi due to the security situation in Tripoli, and the attendant danger that he could escape or be liberated.
274. It would appear from the statements of the Prosecutor-General that Mr. Gaddafi’s trial concerning alleged national security contraventions will continue in May 2013 in Zintan, and that these trial proceedings are scheduled to precede Mr. Gaddafi’s potential trial for the charges, which form the basis of the admissibility challenge. This demonstrates that the authorities have no intention of effectuating his transfer to Tripoli or South Tripoli during at the very least, the first part of 2013.
This is damning stuff — it’s not just that the Libyan government can’t get the Zintan militia to turn over Saif; it’s also that Saif will not be prosecuted for the conduct at issue in the ICC proceedings until after he is prosecuted in Zintan on the charges stemming from the OPCD’s visit to Saif that led to the illegal arrest of Melinda Taylor and her colleagues. Libya has attempted to argue that the other prosecution is irrelevant to its admissibility challenge, but its argument has no merit: Art. 17 requires the ICC to deem a case inadmissible only if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it.” Art. 17 thus does not permit a state to conclude an investigation and then wait for an unrelated prosecution to finish before beginning the prosecution relevant to the admissibility challenge.
Libya cannot show that it has the ability to obtain Saif. It’s time for the Pre-Trial Chamber to acknowledge that evident fact and reject Libya’s admissibility challenge.