A much asked question among those with an interest in international criminal justice over recent months is: where is justice best served? asks Kathryn Howarth
"The Libyan Government claims that Saif Al Islam Gaddafi (the son of Muammar Gaddafi) and Abdullah Al-Senussi (Libya’s former intelligence chief) should be tried in Libya, rather than at the International Criminal Court (ICC) in the Hague. Thus, the ICC must consider for the first time a request from a nation state to conduct proceedings against the same individuals for the same conduct under investigation by the international court.
The pre-trial chamber of the ICC will consider representations from the parties and amicie curaie about whether the court has jurisdiction in the case against Gaddafi. The government of Libya argues that proceedings should take place on Libyan soil. It asks that the pre-trial chamber of the ICC declare the case ‘inadmissible’, on the basis that the national judicial system in Libya is actively investigating both Gaddafi and Al-Senussi.
At the heart of the ICC’s claim to be the guardian of justice in matters of international criminal law is the principle of ‘complementarity’. This principle, which is enshrined in the court’s statute, reflects the idea that nation states have the primary obligation to conduct criminal prosecutions of international crimes and that the ICC will only become involved when states are either unwilling or unable to conduct investigations and prosecutions. In written pleadings, the Libyan government sets out the basis of its claim to be both willing and able to prosecute Gaddafi; although, they argue that the fact that genuine investigations are under way is sufficient for the ICC to rule the case inadmissible…”
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