Reports coming out of Libya tell us that on 28 July 2015 Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, was sentenced to death for his role in his father’s regime. For example, see here and here.
As many readers will know, over the past few years Gaddafi has been subject to a game of legal tug-of-war between the International Criminal Court and Libya over who should try Gaddafi. You can read more about this here and here, but in essence in 2013 and 2014 the ICC decided that Gaddafi should be transferred to The Hague to be tried on charges of murder and persecution as crimes against humanity relating in particular to the Libyan uprising in 2011.
This ICC/Libya tug-of-war takes most of the headlines, especially so with this recent news that Libya appears to have proceeded in defiance of the ICC’s decision and tried Gaddafi and sentenced him to death. But in addition the Court has been activaly involved in this case for a number of years too, and in comparison to the ICC/Libya situation the Court’s involvement is often overlooked.
To recap on the Court’s activity so far, on 15 March 2013 the Court ordered provisional measures in response to an application by the Commission instituting proceedings against Libya alleging violations of the rights of Gaddafi under Articles 6 (right to liberty and protection from arbitrary arrest) and 7 (right to fair trial) of the Charter. The Court exercised it powers to order provisional measures in an attempt to force Libya to refrain from judicial proceedings the would impinge on Gadaffi’s Charter rights, allow him access to a lawyer and visits from family. The Court gave Libya 15 days to report back to it. Libya ignored the order.
Last month the Court issued a further order in response to the reports that Gaddafi had been on trial and sentenced to death. In this latest order the Court sets out in detail its attempts to get Libya to comply with its 2013 order and states clearly that Libya’s refusal to comply with the provisional measures and proceed with Gaddafi’s trial was in contravention of its obligations under the Charter, the Protocol and other international instruments.Until now Libya has failed to respond to this renewed order as well.
Since Libya has not only refused to comply with the Court’s provisional measures order, but appears to have completely ignored the order, it is hard to imagine Libya will suddenly decide to comply with the Court’s latest order. But this does not mean that the renewed order should not be welcomed. Libya’s refusal to adhere by the Court’s orders is also not surprising given its stance with the ICC, but the Court is very much its own organization and its African Union backing gives Libya’s non-compliance a slightly different edge. Whatever happens as this matter proceeds it would be advisable to see Gadaffi’s case not as a tug-of-war between two parties, but instead to remember the role being played by the Court from the continental perspective too, even if so far it has met with little success.