Libya set to Try Saif? Not so Fast

Saif al Islam trialSay what?

It was fitting that news and commentary on justice in Libya was thoroughly confusing today. The conflict in Libya and the post-Gaddafi era have been rife with contradictory storylines: Saif al-Islam Gaddafi was captured. Wait, he’s touring Tripoli! Abdullah al-Senussi has been detained in the south of the country, but we haven’t heard or seen from him since (he is almost certainly not in Libya). International Criminal Court Prosecutor Luis Moreno-Ocampo says Libya can try Saif and Senussi but the Pre-Trial Chamber says ‘hold your horses!’

In short, the narratives emerging from Libya as they pertain to the ICC have been anything but coherent. Even for the most keen observers and commentators, it has been tough to keep track of and distinguish between what was information and what was mis-information.

Today was no different. Reuters first quoted interim Libyan Justice Minister, Ali Khalifa Ashur as saying the ICC’s Pre-Trial Chamber had decided it would respect Libya’s desire to try Saif. Within the hour, other agencies declared that judges at the ICC had done no such thing. A basic search for “Libya + ICC” reveals a Google News mess: a slew of articles with contradictory headlines, some referencing the original Reuters article, others citing the updated news that the ICC hasn’t ruled yet.

In the midst of the confusion, the ICC was forced to clarify that it had not, in fact, ruled on whether it had accepted Libya’s application to try Saif domestically. Yet the ICC hasn’t helped make things much clearer during this process. Readers will recall the confusion that set in when Prosecutor Moreno-Ocampo suggested that Libya could try Saif and Senussi, only to be rebuked by the Pre-Trial Chamber.

Ocampo in Libya

Libya's interim justice minister, Mohammed Alagi, left, ICC chief prosecutor Luis Moreno-Ocampo in Tripoli last November (Photo: Sabri Elmhedwi / EPA)

Last week, Libya’s National Transitional Council (NTC) was due to inform the Pre-Trial Chamber of its plans to try Saif. Instead, it applied for a three-week extension – until the 31st of January. The Pre-Trial Chamber ruled that it could have until today, January 23rd. The basis on which the Pre-Trial Chamber ruled is anyone’s guess. It was not clear in its judgement how it came to its decision or why.

Many expected the ICC to rule today as to whether it would concur that Saif and Senussi could – and should – be tried in Libya. Once again, this was a point of confusion that could have been easily clarified by the ICC. It wasn’t made any better by the fact that the Court’s website was over-run by traffic (also the result of announcements in the Kenyan case) and its servers crashed. While today did mark the deadline for the NTC to submit its plans for Saif and Senussi to the Court, it was not a deadline for the Court to decide on whether the Pre-Trial Chamber would accept or reject that plan. So for all of us holding our breath waiting for the Chamber to rule, collectively breathe: there is no known date for when the ICC will rule on Libya’s application.


A number of issues face the ICC in its decision to either allow or bar Libya from trying Saif and Senussi domestically. The ICC was never in a good position with regards to the decision on where Saif and Senussi could be tried. Indeed, the Court faces something of a catch-22, ‘between-a-rock-and-a-hard-place’ scenario.

On the one hand, if the ICC allows Libya to try Saif and Senussi, those who espouse local justice above all else will celebrate the Court’s decision. So too, it would appear, will most Libyans. Yet, a trial in Libya virtually guarantees that Saif will receive the death penalty. Sources I have spoken to have said in no uncertain terms that they believe that is precisely what fate Saif will meet. A ruling in favour of trying Saif and Senussi in Libya would also seem to be an implicit seal of approval for the treatment of Saif to date, which includes being denied a lawyer and not being told what charges he faces. Rightly or wrongly, the Court will undoubtedly be criticized for allowing both to happen.

On the other hand, by insisting that Saif be tried in The Hague, the Court risks appearing impotent. In both Libya and at the international level,  there appears to be zero political support for the ICC trying Saif in The Hague. No one seriously doubts that Saif will be tried in Libya, regardless of what the ICC says.

Thus, somewhat paradoxically, appearing impotent would be precisely the opposite of what human rights groups thought would happen when the ICC intervened in Libya at the behest of the UN Security Council.

ICC in Libya

(Cartoon: Gado)

A Poison Chalice?

While the ICC may soon rule as to where Saif and Senussi can be tried, the jury is very much still out as to whether its judicial intervention in Libya will be good for the Court.

As I have previously argued, the ICC was left hung out to dry by the powers who led the intervention into Libya and who loudly demanded the ICC become involved in the first place. The result is that the ICC finds itself in a position of having spent thousands of hours and millions of dollars on investigations that will lead to absolutely zero individuals ending up in The Hague. Of course, this could be precisely the reason why the ICC and its advocates seek to frame the Court’s role in Libya as one which has achieved ‘positive complementarity’.

There is much to say about the relationship between the UN Security Council and the ICC. Call me an orthodox supporter of the ICC, but I share the same apprehensions that its drafters held and believe more discretion should be exercised before the Court does cartwheels over getting attention from the UN Security Council. Indeed, it may be worth considering the proposal of some, like Dov Jacobs, that the ICC should politely decline a UN Security Council referral the next time it comes around.

There is a bitterly ironic element to the ICC’s involvement in Libya. When the UN Security Council referred the situation to the Court, human rights groups and ICC supporters raced to declare the referral as a victory for global justice. Instead, the Court may have been played by the international powers, used and abused by power politics. Certainly, the Court isn’t in an enviable position as the Pre-Trial Chamber deliberates on whether Saif and Senussi can be tried in Libya or not – because, for all intents and purposes, it may not matter.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Libya, Libya and the ICC, Outreach, The Tripoli Three (Tripoli3), UN Security Council. Bookmark the permalink.

3 Responses to Libya set to Try Saif? Not so Fast

  1. Joe says:

    I’m a bit unsure about this rhetoric of the ICC being abused, played, used, etc. by the UNSC – has the Libya case in the end done more to further the interests of key states rather than the ICC, probably, but the (seeming) implication that this is at the cost of the purer motives of the ICC (one might assume the pure motivation of rule of law/justice) is a bit suspect to me… (1) the ICC took on the case with their eyes open and those within the court (and elsewhere) hoping for an international trial have a politics of their own, and (2) the court is operating in roughly the way it is supposed to (assuming contested and conflicting ends and mandates), acting as a court of last resort – even if their is a question of procedure in the determination of Libya’s capacity to hold a trial.

  2. Jan Triska says:

    Mark, I think that the ICC is precisely in the same predicament as the United Nations’ organizations are; it is a tool and it is, as an institution, only as good as those who back it up, staff it and run it. It is still more of an instrument of various nation-states rather than a completely free-standing institution. – With respect to Saif (and insert the names of any Arab country dictator or their offspring), he has about as much chance of getting a ‘fair’ trial in Libya and about as low of a chance of avoiding the proverbial noose (or bullet) as Saddam did. We Westerners mean well; we design and fund well-meaning, supposedly impartial, forward-looking institutions such as the ICC. Then these institutions collide with the logic of other places and other cultures. And I can assure you that Libya is the “other”. It is tribal, there is a potent concept of revenge, and they’ve just emerged from a bloody conflict. It’s natural that hounds will be braying for blood. (Study Europe after WW II – how quickly some of the former SS-waffen guys got put on trial and executed)
    Now- another dimension to this is that it might not be all that convenient for the West to have Saif divulge all sorts of details about the reacent rapprochement between the Gaddafi regime and Western countries. I mean the whole overthrow happened kind of organically but just a few months before it started, it had been “business as usual” between the Libyan regime and Britain, France and Italy. Then they helped overthrow that regime, much to the surprise of the likes of Saif. So having him on trial, in a ‘nice’, Western setting, and talk for hours and hours about the days of “business as usual”…embarassing. You know that I am a bit different from some of the other commentators here in that I actually remain quite skeptical about these ‘regime changes’ all over the Arab world. Aside from maybe Tunisia, it hasn’t gone that well…

  3. Mark Kersten says:

    Thanks for both comments.

    @Joe – this is a theme that I keep returning to. It seems increasingly clear that the UNSC, and particular members on the UNSC, have instrumentalized/used the ICC to pursue particular, political ends. It goes beyond “rhetoric”. I think this is the case for both the UNSC’s referral in Darfur (see: as well as Libya (see: , and Yes, the ICC’s OTP accepted the referral with its “eyes open” but I don’t believe that they expected to be in the difficult situation are right now. In the case of Libya, in particular, you can map out a clear trajectory in diplomatic statements moving from clear support for the ICC’s role to saying that “it’s up to the Libyan people” to saying virtually nothing – even when someone like al-Bashir visits Libya (

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