The Office of the Prosecutor (OTP) has asked Pre-Trial Chamber I of the International Criminal Court (ICC) to order Libya to refrain from executing Saif Al-Islam Gaddafi, surrender him immediately to the ICC, and to report his death sentence to the United Nations Security Council (UNSC).
On July 28, 2015, the Tripoli Court of Appeal in Libya sentenced Gaddafi to death for his role in Libya’s 2011 uprising. There was international outrage following this verdict.
Libya held the trial against Gaddafi even though there is currently a case against him before the ICC on charges of murder and persecution as crimes against humanity. Libya failed to surrender Gaddafi to the ICC and continued with its own trial against him and 36 co-accused before Libyan courts. Human Rights Watch and Gaddafi’s lawyer before the ICC have argued that the Libyan trial violated his due process rights, including the right to a lawyer and an opportunity to review the evidence against him.
Under UNSC Resolution 1970 (2011), which referred the case to the ICC, Libya is obligated to cooperate with the court. However, due to Libya’s failure to surrender Gaddafi to the ICC, Pre-Trial Chamber I found Libya in non-compliance with the ICC under article 87(7) of the Rome Statute and referred the matter to the UNSC.
The UNSC has taken note of the Pre-Trial Chamber’s non-cooperation decision and has repeatedly emphasized the importance of cooperating with the ICC (see Resolutions 2213 (2015), 2174 (2014), 2144 (2014), 2095 (2013), 2040 (2012), 2016 (2011), and 2009 (2011)).
Cooperation includes the obligation to enforce Gaddafi’s arrest warrant, the OTP argued.
“Libya must refrain from any action that would frustrate the Court’s ability to exercise jurisdiction over Mr. Gaddafi, including, most glaringly, carrying out any death sentence rendered against him,” the OTP stated.
The OTP also requested that the UNSC be informed of the death penalty sentence against Gaddafi. The prosecutor argued that “this is not only the latest manifestation of Libya’s failure to cooperate with the Court, but also one that will be irreversible should Mr. Gaddafi be executed.”
However, Gaddafi has reportedly been held by a former rebel group in Zintan, Libya, since 2011. Indeed, Libya’s inability to secure his presence at trial was one of the factors the Pre-Trial Chamber relied on when finding the case admissible before the ICC. According to Mark Ellis from the International Bar Association, Gaddafi only appeared at his trial via vido-link for three out of 30 hearings—meaning he was effectively tried in absentia.
It is therefore unclear whether Libya will be able to comply with such an order if the chamber grants the prosecution’s request.