20111123
Reuters
(Reuters) - Libya's National Transitional Council has said it wants to try Saif al-Islam, the son of Col. Muammar Gaddafi, in Libya. But there is already a warrant out for his arrest from the International Criminal Court (ICC) in The Hague.

On Tuesday, ICC Prosecutor Luis Moreno-Ocampo raised the possibility that Saif al-Islam could be tried in Libya rather than The Hague. "The issue of where the trials will be held has to be resolved through consultations with the court," Moreno-Ocampo said in Tripoli. "In the end, the ICC judges will decide. There are legal standards which will have to be adhered to."

Here are some questions and answers about the ICC and its mandate in Libya:

Q: What legal standards is the prosecutor referring to?

A: Under ICC rules, Libya would have to convince the ICC that it is conducting a genuine investigation or prosecution for the same conduct that the ICC has charged Saif al-Islam with.

The court would determine whether the proceedings are independent and impartial and assess whether "due to total or substantial collapse or unavailability of its national judicial system" the Libyan authorities are unable to carry out proceedings.

If the proceedings are found to meet ICC standards, the court would return the case to Libya's judicial system.

(This is what the Kenyan government tried to do in ICC cases arising out of post-election violence in Kenya in 2007. The court concluded that the Kenyan government was not investigating the same conduct.)

Q: Are there other mechanisms?

A: The UN Security Council could decide to suspend the ICC prosecution for a period of 12 months to give Libyan authorities time to prepare a prosecution that meets ICC standards.

Q: What are the charges?

A: The ICC issued arrest warrants for Gaddafi, Saif al-Islam, and former intelligence chief Abdullah al-Senussi on June 27, charging them with two counts of crimes against humanity -- murder and persecution -- for their part in violently opposing civilian demonstrations in the uprising against Gaddafi.

Q: Libya is not part of the ICC, so why is the ICC involved?

A: In most circumstances, the ICC can only investigate alleged crimes in member countries. But in the case of Libya, the UN Security Council authorized the court to investigate events from February 15 onwards in the interests of international peace and security. (This is also how Darfur came before the

ICC).

In the same resolution, the Security Council also decided that the Libyan authorities "shall" cooperate with the ICC and urged other countries to do so as well.

Q: What happens if the ICC decides it should try the case and Libya refuses to hand over the accused?

A: The court can make a finding of non-cooperation and inform the UN Security Council, which would decide how to respond.

The ICC could also ask its member countries to pressure Libya to cooperate. And, if Saif al-Islam escaped custody in Libya and entered the territory of an ICC member country, that country would be legally required to arrest and transfer him to The Hague.

(That said, several ICC member countries have refused to arrest Sudanese President Omar al-Bashir, against whom the ICC has issued an arrest warrant.)

The UN Security Council has urged all states to cooperate with the ICC, so non-members are under a similar, albeit softer, obligation.

Q: Does an ICC trial have to take place in The Hague?

A: No. The ICC has the option of holding an ICC trial in Libya before ICC judges. Before deciding to do so, the judges would likely ask for submissions from all parties, including alleged victims. A key concern would be whether the parties, as well as victims and witnesses, would be safe.

Q: How would an ICC trial work?

A: The accused appears before a chamber of three pre-trial judges, who must find "substantial grounds" to confirm the charges. If the charges are confirmed, the accused then goes to trial before another three-judge chamber, at which point the prosecution will have to prove the charges against them "beyond reasonable doubt."

At any point before the trial starts (and, in exceptional circumstances, even after the trial has started), the Libyan government has the right to argue that the accused should be tried in Libya, not The Hague. (The accused can also make this argument, although Saif al-Islam has previously said he would prefer to be tried in The Hague.)

Q: If the case stays at the ICC, would the accused face the death penalty?

A: No. The harshest sentence that the ICC can hand down is life imprisonment (and even then, only in exceptional circumstances). It can also order the forfeiture of assets for reparations of victims.

Q: Who represents the accused at the ICC?

A: The ICC's Office of Public Counsel for the Defense would represent the interests of the accused in the initial stages. Once proceedings formally begin, the accused has the right to choose a lawyer from a pool of lawyers certified as sufficiently qualified to practice before the ICC. If an accused does not have funds, he can apply to the court for legal aid, paid for by the court.

Q: Will the ICC investigate the killing of Gaddafi?

Prosecutor Moreno-Ocampo has said that Libya's government has informed him it was preparing a strategy to address whether Gaddafi's killing was a war crime (it is a war crime to kill a prisoner of war). As with all potential cases, if the Libyan authorities are conducting genuine investigations, the ICC would have no right to intervene.

Q: Will the ICC investigate allegations against NATO in Libya?

Moreno-Ocampo has said he would examine allegations against NATO "impartially and independently."

One exception to the ICC's jurisdiction in Libya, introduced in the Security Council resolution authorizing the ICC's involvement, covers crimes by nationals of ICC non-member states, other than Libyans. In practical terms, this means the ICC has no jurisdiction to prosecute U.S. officials for NATO's actions because the United States is not an ICC member. France and Britain, both of which took part in NATO action, are ICC members and would be within the court's jurisdiction.