That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically — and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the “unwillingness” prong of the the admissibility test:
In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable… (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5.
As I noted in my previous post, Libya has not denied that Saif will be prosecuted in Zintan before (supposedly) being prosecuted in Tripoli; indeed, Taha Baara, the official spokesperson for Libya’s General Prosecutor, specifically told Reuters last month that ”[i]nvestigations for trying him for war crimes are over and he will be put on trial for that at a later time.” That acknowledgment needs to be read in conjunction with a number of statements by Libya. First, Libya insists that it is responsible for both prosecutions — thereby denying the disquieting possibility that the Zintan case is being prosecuted by a militia over which the Libyan government has no control (para. 6; emphasis mine):
The OPCD’s argument is based on two false premises. First, it assumes that pending determination of an admissibility challenge, Libya is prohibited from initiating any proceedings other than those relating to the same conduct in proceedings before the ICC. The OPCD has been unable to identify any provision of the Rome Statute in support of that contention, which is erroneous. Libya has made no secret of the fact that its national proceedings are broader in scope than those before the Court…. Since the filing of the 1 May 2012 Admissibility Challenge, entirely separate criminal proceedings have also been brought against Mr Gaddafi arising from alleged breaches of national security taking place during the June 2012 visit of OPCD counsel to Zintan.
Second, echoing the final sentence in the quote above, Libya openly acknowledges that there is no relation between the charges in the Zintan case and the charges in the Tripoli case (para. 7):
Libya has already confirmed in relation to Mr. Al-Senussi’s submissions that “the case relating to crimes against the person (which forms the basis of Libya’s admissibility challenges for both Mr Gaddafi and Mr Al-Senussi) and the national security case against Mr. Gaddafi are completely separate trials which are being dealt with in entirely distinct national proceedings.”
Third, Libya continues to insist — as it must, in order to avoid being deemed unable to prosecute — that it is has the ability to obtain Saif for trial in Tripoli. As it told the Pre-Trial Chamber in October:
It is correct that he presently remains in the custody of the Zintan Brigade. Once 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 and, in particular, to the purpose-built trial and detention facilities there.
This engagement with the Zintan Brigade will form part of the new government’s commitment to demobilising the various militia groups which remain active across Libya, as discussed earlier by Professor El-Gehani, and you will appreciate the significance of that for the present delicate situation in which Libya finds itself.
To recap: Saif is facing two different trials, each initiated by the Libyan government; only one of those trials involves the conduct that is at issue in the ICC proceedings; Libya could obtain Saif for prosecution in the ICC-related trial if it wanted to, but it is nevertheless permitting the trial not related to the ICC proceedings to be conducted first.
So here is my question: doesn’t that mean “[t]he national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5″? Libya is obviously not deliberately shielding Saif from criminal responsibility writ large — but by making a conscious decision to delay the ICC-related trial until after the national-security trial, it is deliberately shielding him from criminal responsibility for crimes under Art.5 of the Rome Statute — war crimes and crimes against humanity in particular. (Especially if reports are right and the Zintan militia, Libya’s supposed partner in the national-security trial, intends to ensure that Saif “will leave in a coffin, after the death penalty is imposed on by Libyan Law.”)
To be sure, it is possible that the Pre-Trial Chamber would conclude that this kind of choice is not what the drafters of Art. 17(2) meant by making a national decision “for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5.” It might accept the idea that as long as Libya genuinely intends to eventually prosecute Saif for the ICC-related charges (assuming, of course, that he is still alive to stand trial), it cannot be considered “unwilling” to prosecute him. But that seems like a strained reading of Art. 17(2). The drafters could have defined unwillingness more generally, not tying it specifically to the prosecution of conduct that qualifies as an international crime; indeed, I wish they had, for all the reasons I lay out in my article “A Sentence-Based Theory of Complementarity.” But that isn’t what they did. On the contrary, Art. 17 seems to require a state to arrange its national proceedings and make its national decisions with an eye to ensuring that the suspect wanted by the ICC is prosecuted for conduct amounting to an international crime as soon as is practically possible — not after it spends months, if not years, prosecuting him for completely unrelated conduct.
In short, I think Libya has painted itself into a corner. If it has no control over the proceedings in Zintan, it is currently “unable” to prosecute Saif within the meaning of Art. 17(3). If it does have control over the proceedings in Zintan — as it claims — it is currently “unwilling” to prosecute Saif within the meaning of Art. 17(2). Either way, its admissibility challenge should fail.