The Prosecutor of the International Criminal Court has briefed the Security Council on the Situation in Libya for the forth time (cf. first report here).
In the case against Saif-al-Islam al-Gaddafi, currently in detention in Zintan, the Prosecutor recalls that the Libyan government is eager to try Gaddafi at home and not in The Hague. The government is challenging the jurisdiction of the Court before Pre-Trial-Chamber I. It is now up to the judges to decide where Gaddafi will be tried. The Prosecutor is reluctant to demand a trial in The Hague. She reiterated that national criminal jurisdictions have priority over the ICC. This may be correct, however, Libya is most likely not able to conduct a trial that meets basic requirements of a rule-of-law-trial (see here and here). In addition, the Prosecutor does not mention that Libyan and international authorities first need to get a hold of Gaddafi. Right now, he is in detention by some fringe rebel group (more here and here).
In the case against Abdullah al-Senussi, also in detention, the Libyan government will probably challenge the jurisdiction of the Court as well.
Regarding a second case, the Prosecutor states
“No decision has yet been taken as to the focus of that second case. We continue to collect information on allegations of rape and sexual violence, which targeted both men and women; allegations against other members of the Al-Qadhafi Government for crimes committed during the events of 2011; and allegations of crimes committed by rebels or revolutionary forces, including against the residents of Tawergha, individuals hors de combat and detainees. I will take a decision on the direction of a possible second case in the near future.”
The Prosecutor is to be applauded for taking into consideration crimes by rebel forces and the ethnic cleansing of Tawergha (here). It is a little troubling that she is still contemplating the focus instead of finally addressing crimes by all parties to the conflict.
In this line, the Prosecutor encourages the new government of Libya to ensure that there will be no amnesty for international crimes and no impunity for crimes, regardless of the perpetrator or the victim. Her concerns steem from Law 38, which grants amnesty for acts made necessary by the 17 February revolution, as well as Law 35, which ensures that any act found to be in contravention of international law and human rights covenants will not be exempt.
Overall, the prosecution seems not to have made any real progress during the last year. This is a pity, given the high media attention created by the arrest warrants. If they are not executed, if there is no criminal trial following these warrants, the ICC looses its credibility. It is of no importance whether or not the trial is held in The Hague or elsewhere, as long as it is conducted. All other issues are secondary, even the issue of complementarity. It is not sufficient to apply for new arrest warrants, they must be followed by real criminal investigations and trials. Otherwise, international criminal justice will reach a turning point for the worse. Of course, the new prosecutor has inherited these warrants. But why she has not initiated any investigations against rebel forces remains unclear. Hopefully she can report a case against rebel forces in her next report.