Justice in Libya? The Senussi Sweepstakes!

Senussi Mauritania

Abdullah al-Senussi (Photo: ANP)

As many readers will already be aware, Abdullah al-Senussi was recently detained in Mauritania in a joint operation between French and Mauritanian intelligence forces. Senussi, variously called Colonel Muammar Gaddafi’s “right hand man”, “eyes and ears” and the Gaddafi regime’s “black box”, was the last free member of the ‘Tripoli Three‘ – the Libyan officials wanted by the International Criminal Court for their roles in the brutal crackdown against Libyans last winter.

There aren’t many Gaddafi-regime atrocities that Senussi isn’t linked to. As I have described elsewhere, Senussi is the ‘crown jewel’ of justice in Libya because of his knowledge of the Gaddafi regime and its vicious secrets. Here’s a brief summary of some of the crimes Senussi has allegedly played a key role in:

  • UTA Flight 772: The September 1989 bombing of a French passenger plane over Niger which killed 170 (all crew and passengers); In 1999, French authorities convicted Senussi in absentia for his role.
  • The Abu Salim Massacre (June 29, 1996): a reported 1,200 inmates who had complained of mistreatment were lured into believing they would receive better treatment, only to be killed; Senussi was said to have played a key role.
  • The Libyan Revolution: Senussi is allegedly responsible for organizing attacks on Benghazi, the same attacks that the UN Security Council reacted to by passing Resolution 1973, authorizing “all necessary means” to prevent the massacre of thousands of Libyan civilians. He may also have been responsible for bringing in the mercenaries who fought with Gaddafi loyalists against the rebels.

Given his position in the Gaddafi regime, Senussi also has an intimate knowledge of other crimes committed against both the Libyan people and against non-Libyan nationals. He holds the key to understanding the Lockerbie tragedy and the Gaddafi regime’s funding of the Irish Republica Army (IRA). He undoubtedly has a deep understanding of  the intimate political and economic relations between Western states and the Gaddafi regime (see herehere and here). Perhaps most importantly, Senussi also knows, to put it bluntly, where the bodies are; he knows where the thousands of victims of Gaddafi’s brutal reign was disposed.

With Senussi’s arrest, the primary question regarding his fate has changed. It used to be “where in the world is Abdullah al-Senussi?” Now it is “where in the world will Abdullah al-Senussi be tried?” Welcome to what David Bosco has aptly termed the “Senussi sweepstakes“!

In this context, this post is an analysis of the main players involved in determining where Senussi will end up facing justice.

The 'Tripoli Three': al-Senussi (L), Muammar Gaddafi (C) and Saif al-Islam (R) (Photo: Die Presse)

Libya: Welcome Home!

Unsurprisingly, Libya’s National Transitional Council wants Senussi delivered to Libya and has promised that if he is extradited to Libya, he will be put on trial before national elections this coming June. Libyan authorities, as in the case of Saif al-Islam Gaddafi (see here and here), have refused to entertain any option other than Senussi and Saif being tried in Libya, by the new Libyan judiciary.

In the wake of Senussi’s arrest, Libya sent a delegation, headed by the Deputy Prime Minister, Mustafa Abu Shagour, to persuade Mauritania to extradite Senussi. The NTC subsequently claimed that the two sides had reached a deal and that a date for Senussi’s surrender to Libya would shortly be announced. However, the delegation left without Senussi, the former intelligence chief remains in the capital, Nouakchott, and a Mauritanian source familiar with the negotiations has said that “[a]t this stage no commitment has been given by the Mauritanian side, it looks like wishful thinking by the Libyans.”

The biggest concern with Libya trying Saif is the very real possibility that he will be convicted quickly – likely for his role in the Abu Salim Massacre – and then sentenced to death. If that were to be the case, many of the truths about the Gaddafi regime would die with Senussi.

France: Bienvenue  à la Justice!

France has said that it wants Senussi surrendered to them and that they should get ‘first dibs’ because of their role in detaining him. As noted above, Senussi was allegedly involved in the bombing of the French UTA Flight 772. France, however, has removed the “allegedly” bit and has actually convicted Senussi in absentia for the crime back in 1999.

Initially, there was confusion about what France would do with Senussi, given that he had already been convicted. I myself wondered why they would request his extradition to France just to put him in jail. However, it is now clear that France would re-open and try Senussi again for his role in the demise of UTA Flight 772.

Importantly, the ICC may claim that if Senussi is sent to France, the French government is under an obligation, under the Rome Statute, to hand him over the Court.

Memorial to UTA Flight 772 in the Nigerian desert (Photo: John Newby/SCF)

The ICC: Shot in the Foot, and You’re to Blame

The Office of the Prosecutor (OTP) of the ICC has been incredibly lenient with the NTC’s plans to try Saif al-Islam Gaddafi. Rather than holding up the orthodox standard of complementarity, whereby a state has to legitimately show that it can prosecute the same individuals for the same crimes in order to try them domestically, the OTP seems to have moved to an understanding of complementarity as: “so long as you do some justice, we’re cool with it.”

Further, the ICC’s Pre-Trial Chamber, which has been deliberating on the NTC’s plans to try Saif in Tripoli, has yet to rule on the matter – and it remains unclear when they will.

Lastly, there is apparently no state in the ICC’s proverbial corner. Some, like the UK, have declared that they hope Mauritania cooperates with the Court. However, only human rights groups, worried about Libya’s ability to adequately and legitimately prosecute international crimes, have demanded Senussi’s extradition to the ICC and it is unclear whether any state is willing to do the same.

Taken together, the reality is that, while the ICC has said that it would like Senussi transferred The Hague, it is incredibly unlikely that he will ever find himslef in an ICC court room.

Mauritania’s Win-Win?

For the timing being, Mauritania has remained mum about its plans regarding Senussi. Yet the country will almost certainly come out on top, regardless of whether France or Libya wins the Senussi sweepstakes. For them, Senussi’s fate is a political bargaining chip. David Bosco has put it succinctly:

Handing Senussi over to either of them will yield Mauritania useful diplomatic brownie points. Packing their prize catch off to the Hague will earn the country a slap on the back from Human Rights Watch, but probably little else.

It should be noted that Mauritania is not a member-state of the ICC. While some argue that because Libya was referred to the Court by the UN Security Council it is binding on all states, this is disputed and, more importantly, unlikely to hold much purchase amongst states.

Notably, the relationship between Mauritania and France is quite close, so France may have some leverage there. However, Mauritania was one of the first states to recognize the NTC and is surely taking in its regional, North African relations into consideration.

Senussi may be joining Saif in Libya in the coming days or weeks (Photo: Chris Helgren/Reuters)

The ‘International Community’: Justice? Sure!

US State Department spokesperson, Victoria Nuland, was rather coy in taking questions about Senussi’s capture, managing to say a lot and nothing, all at once:

We are in contact with the Government of Mauritania about him.  I’m not going to speak any further about what we may or may not be consulting about in that context.  But as you know, both Libya and the Government of France have asked for extradition of him, the French Government in connection with a terrorist – the terrorist incident with UTA; the Libyans, for obvious reasons.

So we want to see him brought to justice and we will – right now we have a Libyan delegation in Mauritania, so we’ll see where those contacts go.

Note the complete lack of a mention of the ICC or its arrest warrant against Senussi. It later also emerged that US officials want to meet with Senussi in Mauritania, perhaps a reason why the country has yet to agree to extraditing him anywhere.

The US – and every other state so far – has largely steered clear of entering the fray, at least publicly. Indeed, there has been remarkably little international concern or interest in the fate of Senussi.

Justice in Conflict – in every sense

I continue to believe that the best option for achieving justice – fairly and legitimately – remains trying both Saif and Senussi in Libya – but by the ICC. However, while the ICC has entertained the idea, the NTC remains steadfast against giving up any sovereignty over the matter to the Court – or anyone for that matter.

Regardless of the apparent disinterest in the fate of Senussi, where he is brought to justice matters. The winner of the Senussi sweepstakes will have a major impact for both justice and peace in Libya. But that’s a post for another day.


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 Complementarity, International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3). Bookmark the permalink.

4 Responses to Justice in Libya? The Senussi Sweepstakes!

  1. Dean. says:

    There is another scenario not mentioned, and playing out right now, ask if any possible representation has been made from ‘other interested parties’..the actual Mauritania tribal connection, it was why Senoussi left his relatively secure Mali base. There was no ‘collaboration’ between the ‘family he trusted and French intelligence,’ the ongoing seeking out of a permanent sanctuary was just plain old compromised…the various ‘phone calls were picked up by French intelligence, after all they knew where he was and compromising his communications was not hard from that point onward. So, and back to the point of just who will be taking Senoussi home, I ask you only this, is it not possible that he will remain in Mauritania..and for many a year to come ?

  2. Mark Kersten says:

    Thanks for the comment Dean – it looks increasingly like you may be right in the short term, although eventually I think they’ll send Senussi off, perhaps when the highest bidder offers the best political bid.

  3. Dean. says:

    Whilst Senoussi’s liver deteriorates, apparently on a daily basis, swathes of diplomats ( both official and ‘otherwise’ ) wait in the wings, all believing they alone can ‘explore’ an avenue that will ignite Senoussi and give rise to any remnant of his conscience. Just what actual ‘conscience’ they seek is something well worth a read, the French appear to be dealing with him directly, believing he actually already has some form of permission to stay…Senoussi has THREE very serious guards, bodyguards, and all rather more than mere ‘police watchers,’ the Libyans believe they are French and the French just don;t care ! IF he does leave Mauritania, you can guarantee it’ll be on his terms…but is it intelligence ‘they’ are all after or are some just after a slice of the bigger pie…and if the latter isn’t true, just who is paying for his opulent care and security, and will it buy him a ticket to heaven (!)

  4. Mark Kersten says:

    Hi Dean – do you have any sources or links for information on Senussi, especially with regards to the “swathes of diplomats” visiting him and the conditions he’s under in Mauritania? I am writing an article right now and that kind of detail would be extremely helpful.

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