Should Saif al-Islam Gaddafi be Tried in Libya or the Hague? Towards a Monitoring Mechanism that Reconciles the ICC with Transitional Justice
Should Saif al-Islam Gaddafi be Tried in Libya or the Hague? Towards a Monitoring Mechanism that Reconciles the ICC with Transitional Justice

Summary/Abstract: The decision of the ICC to declare the case against Saif al-Islam admissible and to consider Libya unable to carry out investigation or prosecution has reignited the debate on the ‘cornerstone’ of the ICC regime: the principle of complementarity. The jurisprudence on admissibility of the ICC as developed in this case may discourage states to endorse their duty to investigate and prosecute international crimes, though criminal prosecutions is an important tool of transitional justice. Instead of taking the case from national jurisdiction, the ICC should encourage states emerging from conflict to pursue their transitional justice process. Therefore, the ICC should demonstrate more flexibility in the conduct of the admissibility test and establish a mechanism of monitoring national proceedings for a certain period of time, at the end of which the decision on the state’s ‘willingness and ability’ will be more credible. Such a monitoring mechanism would reconcile the ICC with its complementarity regime by giving a real opportunity to states to participate in the fight against impunity, to improve the legal standards and human rights, and to hold a transitional justice.

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