Pursuant to referral by the U.N. Security Council, the ICC’s Office of the Prosecutor (OTP) has been investigating the situation in Libya since February 15, 2011, for possible crimes within the Court’s jurisdiction and has obtained arrest warrants for three Libyans for crimes against humanity: Muammar Mohammed Abu Minyar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi.[1]
This August a revolt pushed Muammar Qaddafi from power, and on October 20th he was killed as rebels finally wrested control of his hometown of Surt. The country was formally declared liberated three days later, setting in motion the process of creating a new constitution and an elected government.
The death of Muammar Qaddafi has set in motion the formal procedures to withdraw his arrest warrant and terminate that case. But the other two suspects are still at large, and the OTP is continuing to pursue efforts to secure their arrests and to gather evidence on these alleged crimes. Indirect communications with the suspects have been conducted to seek their surrender to the Court.[2]
The OTP also is searching for the personal assets of the suspects for the potential benefit of the victims through reparations that could be awarded by the Court. The OTP had sent requests to Libya, ICC States Parties and the five U.N. Security Council members who are not States Parties (including the U.S.) to identify, trace, seize and freeze such assets.[3]
In addition, the OTP is investigating other possible Libyan crimes within the ICC’s jurisdiction, including the following:
- Alleged rape and other sexual violence by Qaddafi forces.
- The National Transitional Council’s security forces’ alleged mass arrests, detention and abuse of black Africans who are suspected of being pro-Qaddafi mercenaries.
- The National Transitional Council’s alleged mistreatment and torture of captured Qaddafi soldiers, suspected loyalists and alleged mercenaries.
- Alleged disproportionate use of force by all parties.
- Alleged indiscriminate attacks on civilians by NATO forces.[4]
[1] Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Potential Arrests of Three Libyan Suspects (Aug. 22, 2011); Post: International Criminal Court: ICC Prosecutor Seeking INTERPOL Red Notices for Gaddafi (Sept. 9, 2011).
[2] ICC, Second Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (Nov. 2, 2011); ICC Prosecutor, Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011) (Nov. 2, 2011).
[3] Id.
[4] Id.; Post: International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011).
[5] U.S. Mission to the U.N., Remarks by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, at a Security Council Meeting on Libya and the International Criminal Court (Nov. 2, 2011); U.N. Security Council Press Release, International Criminal Court Prosecutor Briefs Security Council on ‘Libya Case’ (Nov. 2, 2011).
International Criminal Court: Saif Al-Islam Qaddafi of Libya Is Arrested
On November 19th Saif Al-Islam Qaddafi was arrested in southern Libya. Immediately ICC officials called for the Libyan officials to have him delivered to the Court at The Hague pursuant to its outstanding arrest warrant. Tripoli officials of Libya’s National Transitional Council said they would do so. However, its information minister said that Saif would be put on trial in Libya under Libyan law. The ICC Prosecutor will be going to Libya to discuss how and where Qaddafi would be tried. (Krauss & Kirkpatrick, Libyan Fighters Catch Qaddifi’s Last Fugitive Son, N.Y. Times (Nov. 19, 2011); Beaumont & Stephen, Saif al-Islam Gaddafi captured in Libyan desert as he tries to flee country, Observer (Nov. 19,2011); ICC, President of the Assembly of State Parties welcomes arrest of Saif Al-Islam Gaddafi (Nov. 19, 2011).).
This will be a test of the ICC’s principle of complementarity, i.e., the preference to have suspects tried in their home countries. Thus, the key issue is whether Libya has or soon will have a functioning judicial system capable of trying Saif with due process protections. (Post: International Criminal Court: Introduction (April 28, 2011).)
Comment: Abdullah al-Senussi Arrested
On November 20th the third person indicted by the ICC in its Libyan investigation for crimes against humanity, Abdullah al-Senussi, was arrested in southern Libya. Libya’s National Transitional Council (NTC) immediately announced that he would not be turned over to the ICC, but instead would be subject to trial in Libya. The ICC, Amnesty International and Human Rights Watch, on the other hand, have called for Libya to turn al-Senussi and Seif al-Islam Qaddafi over to the ICC. There also is an internal debate as to whether and when and upon what conditions the two men would be turned over to the NTC by the militia holding them in the southern part of the country. (Krauss, Libyan Militia Hedges on Handover of Qaddafi, N.Y. Times (Nov. 20, 2011; Reuters, After Gaddafi Son, Spy Chief Run to Ground, N.Y. Times (Nov. 20, 2011).)
As previously mentioned, the ICC’s Prosecutor is expected to be in Libya this week to check on the status of the two men and whether and when they would be turned over to the ICC. (Comment: Saif Al-Islam Qaddafi Is Arrested (Nov. 19, 2011).)
Comment: Options for Trials of Seif Qaddafi and Senussi
Apparently this week the ICC Prosecutor and Libya’s National Transitional Council (NTC) will be discussing at least the following options for trials of the recently captured Seif al-Islam Qaddifi and Abdullah Senussi:
1. Trial in Libya by courts that are not yet established. This is clearly unacceptable to the ICC.
2. Trial by the ICC at its facilities at The Hague on the pending charges of crimes against humanity.
3. Trial first by the ICC at its facilities at The Hague on the pending charges of crimes against humanity during February 2011, and then a trial in Libya on a wider range of charges, including killings, torture, corruption and abuse of state funds. This would keep the two men in a secure place in the near future and give Libya the time to establish a functioning, credible judicial system for the second trial.
4. Trial by the ICC in Libya.
(Simons, International Court Faces Key Test on Libya Captives, N.Y. Times (Nov. 20, 2001).)
Comment: ICC Prosecutor and Deputy Prosecutor in Libya To Discuss Future Trials
On November 22nd ICC Prosecutor Luis Moreno-Ocampo and Deputy Prosecutor Fatou Bensouda arrived in Tripoli, Libya to meet with Libyan authorities as part of coordination efforts following the arrest of Saif Al-Islam Gaddafi and unconfirmed reports regarding the arrest of Abdullah Al-Senussi.
The Prosecutor said “Saif Al-Islam Gaddafi and Abdullah Al-Senussi must face justice. In resolution 1970, the UN Security Council referred the situation in Libya to the ICC and required the Libyan authorities to cooperate with the Court. I will talk to the national authorities and seek information about proposed national proceedings in order to assist us in [analyzing]the admissibility of the case against [the two men] and to understand their plans moving ahead. Their arrest is a crucial step in bringing to justice those most responsible for crimes committed in Libya. This is not a military or political issue, it is a legal requirement.”
The Prosecutor added, “The issue of where the trials will be held has to be resolved through consultations with the Court. In the end, the ICC judges will decide, there are legal standards which will have to be adhered to.”
If the ICC Pre-Trial Chamber concluded, based upon evidence, that Libya had a functioning and fair judicial system that could try the two men on essentially the same charges in the ICC’s arrest warrants, then the Chamber could hold the ICC case inadmissible and allow the Libyan courts to try the case.
(ICC Press Release, ICC Prosecutor arrives in Libya (Nov. 22, 2011); Assoc. Press, International Court prosecutor in Libya for talks on Seif al-Islam Gadhafi trial, Wash. Post (Nov. 22, 2011).)
Comment: ICC Prosecutor Reports on Libyan Discussions
On November 23, 2011, ICC Prosecutor Luis Moreno-Ocampo in Tripoli, Libya announced that Seif al-Islam will be tried in a Libyan court by Libyan judges and that the ICC will help Libya establish the judicial framework for the trial. Moreno-Ocampo said that the ICC standard for such a trial was that it “is not organized to shield the suspect.” He also said that he hoped Libya would provide a fair trial, but that the ICC was not organized “to monitor fair trials,” but instead “to ensure no impunity.” (ICC Press Release, Press Conference by ICC Prosecutor Luis Moreno-Ocampo (Nov. 22, 2011); Assoc. Press, ICC Prosecutor: Gadhafi Son to Be Tried in Libya, N.Y. Times (Nov. 23, 2011); Reuters, Libya Can Try Gaddafi son if Conditions Right–ICC, N.Y. Times (Nov, 23, 2011).)
This position is supported by a former Legal Adviser for the U.S. Department of State. (Bellinger, Regime trials belong in Libya’s courts, Wash. Post (Nov. 23, 2011).
The Libyan Justice Minister also said Wednesday that he cannot confirm reports that al-Senoussi is in custody.
In a related development, on November 22nd, the ICC’s Pre-Trial Chamber granted the Prosecutor’s request to withdraw the arrest warrant for Muammar Qaddifi because of his death. (ICC Press Release, Pre-Trial Chamber I orders the termination of the case against Muammar Gaddafi (Nov. 22, 2011).)
Comment: ICC Pre-Trial Chamber Disagrees with ICC Prosecutor Over Trials in Libya
Later on November 23rd the ICC Pre-Trial Chamber publicly expressed its disagreement with the Prosecutor’s earlier statements that day over trials of the Libyan suspects on ICC charges in Libya by Libyan courtrs.
The Chamber said that if the Libyan authorities wanted to conduct the trials, they had to submit to the Chamber a challenge to admissibility of the case by the ICC on the ground that Libya was ready, willing and able to conduct the trials themselves. Only the Chamber could decide to allow Libya to proceed. This, the Chamber said, was contrary to what was reported in the media. (ICC Press Release, Course of action before the ICC following the arrest of Saif Al Islam Gaddafi in Libya (Nov. 23, 2011).)
Libya will have significant problems in making a successful challenge to admissibility. (Amann, Prospects for Justice in Libya, IntLawGrrls (Nov. 23, 2011).)
Comment: Saif Qaddafi Still in Custody in Libya
Saif Qaddafi still faces an ICC arrest warrant while he remains in a make-shift jail in southern Libya. January 10th is the deadline for the Libyan National Transitional Council (NTC) to notify the ICC of Libya’s plans for his trial in Libya and to whether he is being held incommunicado.
He recently was visited by a journalist who reported that Gaddafi’s right thumb and forefinger have been severed. He says it is a result of a NATO airstrike while others suspect a rebel did it as punishment for Gaddafi’s pre-revolution habit of wagging his finger at the rebels on television.
His sister in Algeria is reported to have hired an attorney to demand that the ICC investigate the killing of their father, Muammar Qaddafi.
Recently President Bashir of Sudan, who also is under an ICC arrest warrant, was in Libya for talks with the NTC leaders. Libya’s inviting and hosting Bashir is seen as a defiance of the ICC.
(Stephen, Saif Gaddafi sets Libya’s new rulers a test of commitment to human rights, Guardian (Jan. 7, 2012) http://www.guardian.co.uk/world/2012/jan/07/saif-gaddafi-libya-human-rights/print.)
Comment: Libya Asks ICC To Allow Libya To Investigate and Prosecute the Two Libyans under ICC Arrest Warrants
The Libyan Government on May 1, 2012, submitted a 58-page application to the International Criminal Court. It asked the Court “to postpone the order for surrender of Saif al-Islam Gaddafi and Abdullah al-Senussi, pursuant to Article 95 of the [Rome] Statute, pending a determination of the Government’s Article 19 admissibility challenge. (¶ 107) That admissibility challenge asks the Court to: (i) declare the case inadmissible; and (ii) quash the Surrender Request. (¶ 108)
Libya asserts that in “accordance with the principle of complementarity set forth in Article 17 of the Rome Statute, . . . this case is inadmissible on the grounds that its national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts of murder and persecution, committed pursuant to or in furtherance of State policy, amounting to crimes against humanity.” (¶ 1)
According to this application, the “national proceedings concerning these matters are consistent with the Libyan Government’s commitment to post-conflict transitional justice and national reconciliation. It reflects a genuine willingness and ability to bring the persons concerned to justice in furtherance of building a new and democratic Libya governed by the rule of law. To deny the Libyan people this
historic opportunity to eradicate the long-standing culture of impunity would be manifestly inconsistent with the object and purpose of the Rome Statute, which accords primacy to national judicial systems.” (¶ 2)
The key issue for this blogger is whether Libya is capable of conducting an investigation and trial of the two suspects in a competent and fair manner. Libya confronts this issue when it says:
• “Libya has requested the assistance and cooperation of the UN High Commissioner for Human Rights and other organizations with respect to strengthening the capacity of the judiciary and the legal profession in general and to provide specialized training for judges and prosecutors, with a particular focus on litigation related to transitional justice. With the support of the international community, including the [ICC], the UN, and civil society, and taking into account the expertise presently existing within the Libyan criminal justice system, Libya is able to carry out proceedings in accordance with intemational standards, and is committed to doing so. (¶ 97)
Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, Prosecutor v. Saif al-Islam Gaddafi and Abdullah al-Senussi (May 1, 2012),