ICC Hands off Libya

Abdullah al-Senussi (Photo: Reuters)

Abdullah al-Senussi (Photo: Reuters)

I have a new article up at Foreign Policy’s Middle East Channel that may be of interest to some readers. It covers the ICC’s inadmissibility ruling in the case of Abdullah al-Senussi. The piece places the ruling into the political context of the battle between Libya and the ICC over where Senussi and and Saif al-Islam Gaddafi should be tried. Here’s a snippet:

Judges at the International Criminal Court (ICC) have ruled that Libya has demonstrated a genuine will and ability to prosecute Abdullah al-Senussi. Libya, they ruled, is free to prosecute the mysterious former Libyan intelligence chief and the mastermind behind a laundry list of Muammar al-Qaddafi-era atrocities. The path is now clear for Libya to prosecute Senussi — and to do so with the blessing of the ICC and the international community. But is the path cleared for Libyans to achieve justice?

Headlines and statements that proclaim “Qaddafi spy chief to be tried in Libya” miss the point. Senussi was always going to be tried in Libya; what the ICC said or ruled was irrelevant. The Libyan public had made it clear: they wanted Senussi tried in Libya, by Libyans. Libyan politicians made it even clearer, reportedly paying $200 million to Mauritania for Senussi’s surrender in September 2012.

Still, the ruling by ICC judges that Libya can proceed in its prosecution and trial of Senussi is significant. It bestows a badge of credibility on Libya’s fledgling efforts at state building. Whether it should have done so will be a matter of much debate.

Since even before the Libyan revolution concluded, Libya and the ICC have been engaged in adrama-filled fight over where Senussi and Muammar al-Qaddafi’s son and former heir-apparent Saif al-Islam Qaddafi should be tried. Libya, on the one hand, has argued that trying Saif and Senussi is its sovereign prerogative. On the other hand, defense lawyers for Saif and Senussi, along with the international human rights community, have been adamant that a fair trial in post-war Libya is all but impossible. They decry that neither Saif nor Senussi have received adequate legal representation and that both are likely to go the way of the gallows.

Unsurprisingly, legal arguments in the battle over where to try Saif and Senussi have been overshadowed by political developments as the Libyan government, handicapped by a prevalence of wanton militias, struggles to assert stability and order. The stalemate between the ICC and Libya has been punctuated by moments of remarkable controversy, most notably when Saif’s ICC defense lawyers were arrested and detained for three weeks following a visit to their client in Zintan.

While Libyan political figures have made it clear that, come hell or high water, Saif and Senussi will see justice served in Libya at the hands of Libyans, it is easy to forget that the government has also fully engaged the ICC from day one, hiring an impressive roster of legal minds to represent its cases. The reason seems simple enough: while Libya, in no uncertain terms, will ultimately be responsible for bringing Saif and Senussi to justice, getting a seal of approval from the ICC — and, by extension, the international community — matters to a country struggling to build state institutions but yearning to be reinstated as a sovereign and legitimate member of the international community.

ICC Chief Prosecutor Fatou Bensouda has generally been in favor of Libya prosecuting Saif and Senussi. She called their prospective trials in Libya a potential “Nuremberg moment,” referring to the trials of senior Nazi figures in Germany following World War II. Undoubtedly, many at the ICC believe that Libya should be given every opportunity to prosecute Saif and Senussi itself. To deny Libya that opportunity would be to treat the new regime as if it were the Qaddafi regime of old. To give justice a chance, they argue, is to give Libyan justice a chance.

Judges at the International Criminal Court (ICC) have ruled that Libya has demonstrated a genuine will and ability to prosecute Abdullah al-Senussi. Libya, they ruled, is free to prosecute the mysterious former Libyan intelligence chief and the mastermind behind a laundry list of Muammar al-Qaddafi-era atrocities. The path is now clear for Libya to prosecute Senussi — and to do so with the blessing of the ICC and the international community. But is the path cleared for Libyans to achieve justice?

Headlines and statements that proclaim “Qaddafi spy chief to be tried in Libya” miss the point. Senussi was always going to be tried in Libya; what the ICC said or ruled was irrelevant. The Libyan public had made it clear: they wanted Senussi tried in Libya, by Libyans. Libyan politicians made it even clearer, reportedly paying $200 million to Mauritania for Senussi’s surrender in September 2012.

Still, the ruling by ICC judges that Libya can proceed in its prosecution and trial of Senussi is significant. It bestows a badge of credibility on Libya’s fledgling efforts at state building. Whether it should have done so will be a matter of much debate.

Since even before the Libyan revolution concluded, Libya and the ICC have been engaged in adrama-filled fight over where Senussi and Muammar al-Qaddafi’s son and former heir-apparent Saif al-Islam Qaddafi should be tried. Libya, on the one hand, has argued that trying Saif and Senussi is its sovereign prerogative. On the other hand, defense lawyers for Saif and Senussi, along with the international human rights community, have been adamant that a fair trial in post-war Libya is all but impossible. They decry that neither Saif nor Senussi have received adequate legal representation and that both are likely to go the way of the gallows.

Unsurprisingly, legal arguments in the battle over where to try Saif and Senussi have been overshadowed by political developments as the Libyan government, handicapped by a prevalence of wanton militias, struggles to assert stability and order. The stalemate between the ICC and Libya has been punctuated by moments of remarkable controversy, most notably when Saif’s ICC defense lawyers were arrested and detained for three weeks following a visit to their client in Zintan.

While Libyan political figures have made it clear that, come hell or high water, Saif and Senussi will see justice served in Libya at the hands of Libyans, it is easy to forget that the government has also fully engaged the ICC from day one, hiring an impressive roster of legal minds to represent its cases. The reason seems simple enough: while Libya, in no uncertain terms, will ultimately be responsible for bringing Saif and Senussi to justice, getting a seal of approval from the ICC — and, by extension, the international community — matters to a country struggling to build state institutions but yearning to be reinstated as a sovereign and legitimate member of the international community.

ICC Chief Prosecutor Fatou Bensouda has generally been in favor of Libya prosecuting Saif and Senussi. She called their prospective trials in Libya a potential “Nuremberg moment,” referring to the trials of senior Nazi figures in Germany following World War II. Undoubtedly, many at the ICC believe that Libya should be given every opportunity to prosecute Saif and Senussi itself. To deny Libya that opportunity would be to treat the new regime as if it were the Qaddafi regime of old. To give justice a chance, they argue, is to give Libyan justice a chance.

Read more here.

About Mark Kersten

Mark researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, his work examines the politics of the International Criminal Court and the effects of its interventions.
This entry was posted in Admissibility, Complementarity, ICC Prosecutor, Justice, Libya, Libya and the ICC, UN Security Council and tagged . Bookmark the permalink.

One Response to ICC Hands off Libya

  1. Tony Irungu says:

    What a hypocritical ruling by the ICC ‘judges’. It just confirms that the court is a political tool of the west. Libya is a state in utter chaos controlled by islamic gangsters you want to excuse as ‘militias’, and there is no way such a state can have a judiciary with the standard required to try war crimes. Contrast that with Kenya which has a judiciary led by a CJ who has reform credentials. However, we all know the Libya is led by unelected puppets imposed by the west and who are even dual citizens of western nations with a clear mandate to serve the west’s predatory agenda for Libya’s resources. Senussi is therefore cooked; he has secrets the west would not like exposed and no goat ever survived a jury of hyenas.

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