The good folks at Al Jazeera’s The Stream just posted this video of UN Dispatch-friend Rebecca Hamilton discussing the big news that Laurent Gbagbo had turned himself into the ICC.
Bec is one of the sharpest commentators out there when it comes to international law and the International Criminal Court. (And she wrote a really excellent book, too!)
I look forward to reading her commentary on the late-breaking news that ICC member states are coalescing around an African woman–ICC Deputy Prosecutor Fatou Bensouda — to replace Luis Moreno Ocampo when his term expires. In the meantime, Bec reported out this helpful backgrounder for Reuters on some of the thorny legal issues facing the ICC’s case against Seif al Islam, who is wanted for crimes in Libya.
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.)