ICC might launch Libya crimes probe from Egypt

Egypt's former foreign minister Ahmed Abul Gheit has invited International Criminal Court General Prosecutor Luis Moreno-Ocampo to visit Egypt in order to carry out the Security Council-mandated investigation into crimes against humanity in Libya, well-placed sources at the United Nations told Al Arabiya.

The sources mentioned that Egypt’s main aim from the invitation is to assist the ICC in completing its investigation into the alleged crimes.

Asked about the precise nature of this assistance, the sources said the Egyptians could facilitate investigators’ interviews with refugees coming out of Libya to Egypt. They could also facilitate the entry of investigators’, including Ocampo’s, into Libya through the Egyptian border, in order to speak to eye witnesses and possibly meet with members of the Transitional National Council based in Benghazi.

The preliminary draft of the U.N. Security Council resolution 1970, adopted unanimously on Feb. 26, requested that the Arab League and the African Union aid and support the ICC in its investigation into alleged crimes in Libya.

Ocampo's visit to Cairo, according to Al Arabiya sources, was anticipated this weekend, but was delayed due to change of the government of prime minister Ahmed Shafiq and the replacement of Abul Gheit by Nabil al-Araby in the Egyptian Foreign Ministry.

Egypt's invitation

The Egyptian government’s invitation has not been formally withdrawn or changed, as al-Araby’s office is currently working on setting a new date for the visit, Al Arabiya sources said. However, if a new date is not set or announced in the near future and silence prevail, this will mean the effective withdrawal of the Egyptian government’s formal invitation which was made through former foreign minister Abul Gheit.

This will also mean that no or limited help will be given to Ocampo to carry out his mandated task by the Security Council under Chapter 7 of the U.N. charter. The Egyptian ambassador in the Hague was scheduled to visit the ICC Headquarters last Wednesday in order to arrange the details of the visit, but it remains unclear if the visit took place or whether it has been postponed or delayed. The Egyptian Mission to the U.N., as well as the ICC, would not confirm or deny these details, obtained from Al Arabiya sources.

The new Egyptian Foreign Minister al-Araby wrote an editorial in Shorouk newspaper on Feb. 19, a few weeks before his appointment, in which he praised the Jan. 25 revolution and called for a review of Egyptian foreign policy.

He argued that his country foreign policy, should be based on scientific and careful basis. The ratification of the Rome Statute and joining the International Criminal Court should be placed among the main priorities of Egypt’s new foreign policy, al Arabi said.

Al-Araby headed Egypt’s delegation to the negotiations over the formation of the ICC when he served as Egypt’s ambassador to the U.N. from 1991 to 1999.

Under his team leadership, Egypt played a very important role in the establishment of the Court. Al-Araby also served as a judge in the International Court of Justice and is considered one of Egypt’s eminent jurists. Through several conversations with lawyers in New York, al-Araby is highly thought of by senior legal advisors at the United Nations.

Al Arabiya has also learned that the ICC Prosecutor will present his first report to the Security Council on May 5, 2011, despite the fact that many diplomats believe Ocampo will not have undertaken a thorough investigation into all alleged crimes by that time.

Preliminary list

Ocampo already has a preliminary list containing 8 names which Al Arabiya had revealed on March 3, which included:

*Libyan Leader Muammar Gaddafi
*Abd al-Qadir Youssef, head of the Gaddafi’s personal security
*Abu Zeid Omar Dourda, head of external security
*Foreign Minister Musa Kusa
*Saif al-Islam Gaddafi
*Khamis Gaddafi
*Mutassam Gaddafi
*Mansour Dow

Ocampo will likely be forced to announce his indictments in stages, with the announcement of 2 or 3 names in each stage. The aforementioned list is a flexible one, as names can be added to it if evidence of involvement in crimes against humanity in Libya becomes readily available.

Al Arabiya sources confirmed that there is no doubt that names will be added and that the first two names in the first stage of indictments will be that of Gaddafi himself and his son, Saif Al-Islam.

Ocampo promised that the investigations would be fast and swift. A well-respected, high-level international jurist in New York supported his assertion, explaining that the most difficult part of a prosecutor’s job is to prove that the accused person handed down orders for the alleged crimes to be committed. In this case however, the jurist explains, the orders were given by Gaddafi and his son Saif al-Islam in public and were broadcast via Arab and international television networks.

Other sources close to the ICC have revealed that the Prosecutor’s report, which will be presented to the Security Council on May 5, will question the Council members about their readiness and ability to carry out arrest warrants when and if issued by ICC pre-trial judges.

Ocampo imposed these questions after his disappointment, according to Al Arabiya sources, in the lack of action on arrest warrants issued in the Darfur case, mandated to him by the Security Council.

Libyan regime's behaviour

The sources pointed out that Ocampo’s tireless efforts in investigating Darfur crimes and the pre-trial judges confirmation of the charges and the issue of several arrest warrants, only to find that no one is willing to carry out the arrests.

Ocampo had hoped that Security Council resolution 1970 mandate would allow him to investigate crimes in Libya since 2002, rather than Feb. 15, 2011, Al Arabiya sources said.

This expanded time frame that would have allowed him, according to the sources, to show a pattern in the Libyan regime’s behavior.

The International Criminal Court was established in 2002 and the Rome Statute does not allow for investigation into crimes committed before that time. Recent alleged crimes of the Libyan regime include what Human Rights Watch described as the slaughter of 1200 prisoners in Abu Salim prison in June 1996. The Libyan government denied any crimes were ever committed in that prison.

If the visit of Ocampo to Egypt materializes, it would not be the first time that Egypt has cooperated with the ICC. For example, in the case of Bahr Idriss Abu Garda, the Darfuri rebel leader, Egypt facilitated his travel to The Hague for his voluntary appearance before the Court on May 18, 2009, to answer charges filed against him.

On his way to Holland, his plane landed in Cairo Airport, wherein authorities stopped, questioned and prevented him from continuing his trip. Phone calls placed by ICC officials eventually secured the Egyptian government’s cooperation in allowing him to continue his trip to The Hague.

From a legal perspective, any country may cooperate with the ICC regardless of it being a signatory to the Rome Statue or a member of the ICC.