Monday, October 31, 2011

Both sides in the Libyan conflict want ICC action

In June, the International Criminal Court (ICC) issued arrest warrants for Gaddafi and his son, Saif al-Islam Gaddafi. Although Gaddafi's death moots his arrest warrant, the ICC prosecutor, Luis Moreno-Ocampo, reportedly has "substantial evidence" against Saif al-Islam Gaddafi, indicating his involvement in planning attacks against civilians. Reports also suggest that the ICC prosecutor is in indirect talks with Saif al-Islam Gaddafi regarding his possible surrender to the ICC.

Meanwhile, it is also reported that Gaddafi's other family members want the ICC prosecutor to investigate claims that NATO violated international law during its involvement in the Libyan conflict. Gaddafi's family alleges that NATO's airstrikes led to Gaddafi's death in violation of article 8 of the ICC Statute regarding war crimes.

The family is likely to have difficulty asserting ICC jurisdiction over the matter. The ICC can only obtain jurisdiction through a referral by the United Nations Security Council, a referral by a State Party or a matter brought by the prosecutor and approved by a chamber of judges. Libya is not a party to the ICC Statute, so its government could not refer the matter. It seems unlikely that the UNSC would refer the matter to the ICC given that some of the permanent members of the UNSC are also members of NATO. Thus, the Gaddafi family would have to rely on the discretion of the ICC prosecutor and judges.


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