The first images of Abdullah al-Senussi since the end of Libyan revolution littered social media sites yesterday as the Gaddafi regime’s “eyes and ears”, “blackbox” and “henchman” arrived in Libya after being extradited to Libya from Mauritania. There he was, somewhat disturbingly smiling as he disembarked from a helicopter amongst a crowd that chanted “the blood of the martyrs will not go in vain.”
As many readers will know, Senussi is widely believed to be responsible for a bevy of the Gaddafi regime’s worst excesses, including the Abu Salim Massacre (1996), the Lockerbie bombing (1988), the murder of Yvonne Fletcher (1984), and the regime’s wider sponsorship of international crime and terrorism. If not fully responsible, as Gaddafi’s internal and external intelligence chief, it is beyond evident that Senussi has intimate knowledge of who and how these crimes were orchestrated.
Of course, Senussi was also a key actor in the crackdown against civilians during the Libyan revolution, for which he was indicted by the ICC in June 2011. However, as Tripoli fell to Libyan rebels and the Gaddafi regime splintered, Senussi went on the run. After false reports that he had been arrested near Sabha, in the desert expanses of southern Libya, it was reported in March that Senussi had been detained in Nouackchott, the Mauritanian capital. His arrest, the result of a joint operation between Mauritanian and French special forces, was followed by a tug-of-war over his custody by Libya, France and the ICC.
France had originally sought Senussi in connection with the bombing of UTA Flight 772 (he had also previously been convicted for the bombing). The ICC wanted him surrendered in order to face charges for alleged crimes in the Libyan revolution. For Libyans, many have wanted to see Senussi face justice for years, if not decades for reigning terror on Libyans at home and abroad. Yesterday, Libya won the “Senussi sweepstakes“.
Notably, just weeks ago this development seemed utterly impossible. In early August, Senussi was charged in Mauritania. At the time, President Mohamed Ould Abdel Aziz said Senussi would not be extradited but instead put on trial for illegally entering the country. Many (including myself) thought the charges were brought against Senussi in order to buy Mauritania time. What changed in Mauritania’s political calculus in recent weeks remains unclear. While The Guardian quoted an unnamed source as saying that Senussi “was extradited to Libya on the basis of guarantees given by Libyan authorities”, what exactly those guarantees were remains unknown. Nevertheless, clearly something rather significant convinced Mauritania to extradite Senussi to Libya.
Of course, the extradition will have important implications for Libya’s admissibility challenge at the ICC. Defence Counsel at the Court had argued that ICC judges should reject Libya’s request to try Saif and Senussi in Libya on the basis that neither Saif nor Senussi were in Libyan custody. Under Article 17(3) of the ICC’s Rome Statute, a state must be able to obtain the accused (Saif and Senussi), in order to win an admissibility challenge. With Senussi on its soil and in its custody, Libya can argue that it has now obtained both, even if Saif remains in the detention of a Zintani militia. Of course, nothing is written in stone and judges in the ICC’s Pre-Trial Chamber may still rule against Libya’s request to try Saif and Senussi domestically. But, as Kevin Jon Heller argues, Senussi’s repatriation
“makes it far more likely that Libya’s admissibility challenge to the ICC’s case against al-Senussi will succeed. Libya is obviously no longer unable to obtain the accused’ for purposes of Article 17(3) of the Rome Statute.”
Others, such as Sir Geoffrey Nice, have argued that Libya and the ICC could be heading for another “showdown”. But that seems unlikely. Another debacle anywhere near the level of the illegal detention and arrest of ICC staff earlier this summer would only further harm the ICC and Libya’s young government. Both are likely to seek to avoid any major confrontation.
It would not be surprising if, after spending so much time and energy and coming up largely empty-handed, many at the ICC are quietly hoping that the Libya situation quietly moves away from the foreground of the Court’s work. Importantly, as Geoffrey Robertson points out, the ICC’s futility in Libya has been compounded by an almost complete absence of support within the international community for the Court’s mandate. The extradition of Senussi is no different as the ICC has once again been left hanging by the very powers that put its work in Libya in motion. In this context, Senussi’s arrest could very well be the final nail in the coffin for the ICC in Libya. Both living individuals whose arrest the Court had sought are in Libya. Neither will be surrendered to The Hague. No state with the power to do so is about to pressure Libya into surrendering Senussi to the ICC. However tough a pill to swallow, it may simply be time to move on.
An obvious question remains: can Senussi receive a fair trial? Many doubt it. In a scathing critique, Robertson exclaimed that Senussi “has been returned to Libya where he will receive not justice, but revenge.” In a similar vein, Marek Marczyñski of Amnesty International declared that
“Instead of extraditing Abdullah Al-Senussi back to Libya, where he faces an unfair trial and the death penalty for ordinary crimes under national law, Mauritania should have given precedence to the ICC’s surrender request.”
Still, while many will certainly seek a bloody end for Senussi, it is important to note that many Libyans would like to see Senussi tried and his many dark secrets revealed. Moreover, there does appear to be at least some domestic will to hold a legitimate trial under international standards. Notably, Prime Minister Abdurrahim el-Keib declared that
“Abdullah al-Senussi will have a fair trial according to international standards for human rights, the rights from which Libyans were deprived.”
Some also believe that Libya will seek to demonstrate to the eagerly watching world that it respects and abides by the rule of law. As Rana Jawad notes, Senussi’s “extradition and any future trial are an opportunity for the new authorities to show that they are in control of security matters.” Libya may also view Senussi’s trial (as well as that of Saif) as an opportunity to demonstrate its return to international legitimacy. Whether it is actually able to do so, is another story and remains to be seen.