The assurances by Moreno-Ocampo, NATO officials and American UN Ambassador Susan Rice that Libya is currently fully capable of currently handling trials of former regime loyalists are nonsense. Rice exhibited ignorance and surprise here last weekend when she claimed not to know that Libya had the death penalty and would apply the death penalty in the ICC case if given the chance. The Libyan public's apparent preference is for the death penalty by hanging in the two Libya ICC cases. This was the case with Rwanda, which is one reason the Ruanda Tribunal did not allow the government of Rwanda to conduct certain trials even though that government assured the UN it would not actually carry out a death penalty sentence. Libya has offered no such assurances to the ICC against the use of the death penalty nor has it submitted a legal challenge to ICC jurisdiction over the Saif al Islam or Abdullah Sanussi cases, as the Rome Statute requires.
Despite switching jobs, Ocampo has not lost interest in prosecuting the Saif al Islam case which he views as his best chance of finally winning at least an ICC related case, but not at The Hague where there is the possibility that Saif would not be convicted, given Court rules of procedure and ICC legal staff resources that would actually assist an accused in presenting his defense before the court. Ocampo is said to be betting on gaining a victory in Saif's high profile case by working with the NATO-created NTC government in Libya and running the prosecution as a behind the scenes "consultant" and helping Libya's NTC keep the UN and ICC at bay while allowing the NTC to try both Saif's case and that of Abdullah Sanussi if and when the latter is proven to have been captured. Ocampo is said to relish the job of becoming the "Father of Libya's new legal system." Ocampo is now explaining that it was never his role "to tell Libyan officials how to hold a fair trial and the standard of the ICC is that it has to be a judicial process that is not organized to shield the suspect and I respect that it's important for the cases to be tried in Libya." He then added, "There are so many different traditions; it is difficult to say what is a fair trial."
No sooner had the surprising news and Ocampo's sudden vagueness about what constitutes a fair trial begun to ricochet around the Internet than this observer received an email from an international criminal lawyer whose office is two blocks from the Carl Moultrie Courthouse in Washington, DC. The American lawyer was appalled: "Paying Ocampo as a consultant for the new Libyan government on criminal trial procedures is a ridiculous thought/idea. He has no idea of fair trial rights and has not achieved a conviction in his nearly 9 years at the ICC."
Nor were the ICC judges thrilled at the perceived betrayal. The ICC quickly fired off a reminder to Ocampo, to the new Libyan government and the media that it is the ICC judges, and not the ICC Prosecutor, who will decide whether a case will be held in The Hague or in the country where the alleged crimes occurred and only they will decide if Libya has the ability to conduct a fair trial. The ICC is signaling that the Ocampo-generated international headlines to the contrary notwithstanding, the issue of trial venue in Libya has not settled in ICC case # 01/11.
Prosecutor Ocampo knows well that once the ICC decides to open an investigation of a case, national courts may not investigate that case and are relieved from their obligation to do so. In addition, since the ICC has issued an arrest warrant against Libyan defendants, all states -- including Libya -- are obliged to cooperate fully with the Court. -- -- Following the public dressing down from The Hague, Ocampo has now retreated a bit and told CNN on 11/23/11 that: " The only condition is the new Libyan government has to present their position to the International Criminal Court judges and the judges will decide if the case can be prosecuted in Libya. Libya will present evidence to ICC judges that the country can hold the trial, and the judges will decide if they are satisfied," Ocampo explained.
The ICC, if it takes up the question as expected, should rule in the developing Saif al Islam case, precisely as the International Criminal Tribunal for Rwanda found in ruling against that country's request for trial jurisdiction, although like Libya today, Rwanda claimed to have a "modern functioning court system." The reason is that an initial review of Libya's criminal judicial system and discussion with Libyan criminal defense lawyers as well as with international criminal defense lawyers with years of experience in international tribunals' practice, shows that it is very clear that persons accused of serious crimes in Libya currently do not have even the most minimal judicial rights that are required by international norms. Today Libyan defendants do not benefit from adequate legal representation, financial support for indigent accused, travel and investigation support for defense teams, or security for defense teams. Libya's central and local governments place impediments curtailing defense teams in the discharge of their functions.
An admittedly cursory inquiry in Libya among lawyers here also reveals nonexistent or inadequate accommodation and transport arrangements for witness, as well as a lack of arrangements for protection of witnesses before, during and after testifying in court. In addition, the NTC is engaging in a pattern of threatening potential witnesses preparing to testify against NATO in another case. Similarly the NTC is failing to provide safe and secure travel for Libyan witnesses living abroad, including in Algeria, Tunisia, Mali, Niger, and Egypt. Interviews with Libyan lawyers and officials as well as visits to detention facilities in Libya reveal that conditions are not in compliance with international standards and that there is widespread torture of prisoners in Libya and threats against the families of prisoners.
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