Abstract
In the wake of the widespread and systematic violence directed by former Libyan government forces and paramilitaries against peaceful demonstrations in Benghazi and other Libyan cities in mid-February 2011, the UN Security Council—pursuant to Article 13(b) of the Rome Statute of the International Criminal Court (the Rome Statute)—unanimously adopted on 26 February 2011 Resolution 1970, referring the situation in Libya to the Prosecutor of the International Criminal Court (ICC or the Court) under Chapter VII of the Charter of the United Nations. Consequently, the Pre-Trial Chamber I (PTCI) of the Court issued three warrants of arrest for Muammar Qaddafi and his son Saif Al-Islam, as well as for Abdullah Al-Senussi, Gaddafi’s intelligence chief. After the killing of Muammar Qaddafi on 20 October 2011, and following the capture of Saif Al-Islam and Al-Senussi, Libya challenged the admissibility of the cases against them. While the PTCI has determined that the case against Al-Senussi is inadmissible before the Court, it rejected Libya’s challenge of the admissibility of the case against Saif Al-Islam, and requested that the Libyan government meet its obligations under the UN Security Council’s Resolution 1970 (2011) and surrender the suspect to ICC custody in The Hague. After examining the ICC’s complementarity regime and its inconsistent decisions on the admissibility of the above cases, and also considering the challenges involved in prosecuting international core crimes under Libya’s transitional justice system, this chapter explores whether the latter is or is not equipped to undertake the prosecution of Saif Al-Islam and Al-Senussi for international core crimes—particularly widespread and systematic attacks—allegedly committed by Libyan government agents against the civilian population during the February 2011 uprising. After an extensive analysis of the above cases, this chapter shows that the post-Gaddafi Libyan courts are not the proper judicial bodies to undertake such prosecutions, and reaches the conclusion that, unless Libya restores its justice system and establishes effective judicial mechanisms and democratic institutions, the country will continue to suffer instability for a considerable period of time.
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Notes
- 1.
Shenkman (2012), pp. 1229–1230.
- 2.
ICC (2011a), para. 2.
- 3.
Bishop (2013), p. 401.
- 4.
Al-Senussi was extradited from Mauritania to Libya on 5 September 2012.
- 5.
Kersten (2014), p. 188.
- 6.
Zawati (2014b), p. 81.
- 7.
ICC (2012b), para. 23.
- 8.
ICC (2013f).
- 9.
ICC (2013g).
- 10.
ICC (2014b).
- 11.
ICC (2013r), para. 311.
- 12.
ICC (2013s).
- 13.
ICC (2014e).
- 14.
Treaties (1998).
- 15.
Kleffner (2008), p. 18.
- 16.
Treaties (1998).
- 17.
Treaties (1998), Article 17.
- 18.
Kleffner (2008), p. 10. See for example: Articles 49–51 of Geneva Convention I; Articles 50–52 of Geneva II; Articles 129–131 of Geneva III; Articles 146–148 of Geneva IV.
- 19.
Treaties (1948a); Acceded by Libya on 16th May 1989.
- 20.
Treaties (1948a), Article 1.
- 21.
Treaties (1948a), Article V.
- 22.
Treaties (1948a), Article VI.
- 23.
Acceded by Libya on 3 July 1968.
- 24.
Treaties (1965).
- 25.
Acceded by Libya on 16 May 1989.
- 26.
Acceded by Libya on 16 May 1989.
- 27.
Ratified by Libya on 13 June 1961.
- 28.
Ratified/Acceded by Libya on 22 May 1956.
- 29.
Ratified/Acceded by Libya on 22 May 1956.
- 30.
Ratified/Acceded by Libya on 22 May 1956.
- 31.
Ratified/Acceded by Libya on 22 May 1956.
- 32.
Ratified/Acceded by Libya on 7 June 1978.
- 33.
Ratified/Acceded by Libya on 7 June 1978.
- 34.
Zawati (2014b), p. 63.
- 35.
Report (2013b), p. 9.
- 36.
Report (2012c), p. 73.
- 37.
Ben-Halim (1992), pp. 62–63.
- 38.
Report (2012c), p. 75.
- 39.
Report (2012c), p. 77. In an attempt to take steps to gradually reform the judicial system under pressure made by international human rights groups, the regime abolished this court in 2005. Two years later, the regime established the State Security Court and Prosecution in 2007.
- 40.
Report (2013b), p. 12.
- 41.
Report (2013b), p. 12.
- 42.
Report (2012c), pp. 77–78.
- 43.
Mancini (2012), p. 104.
- 44.
Libyan Laws (2011).
- 45.
Report (2012c), p. 82.
- 46.
Libyan Laws (2012d).
- 47.
Libyan Laws (1953).
- 48.
Law No. 48 of 23 September 1956, which provided for the cancellation of 9 articles, adding 20 articles, and modifying 213 articles.
- 49.
Zawati (2014b), p. 58; under Law No. 38 of 1975.
- 50.
Treaties (1945). Libya was admitted to the United Nations on 14 December 1955.
- 51.
Treaties (1950). It was not signed by Libya.
- 52.
Treaties (1948a).
- 53.
ICC (2012c), Annexes A & B.
- 54.
ICC (2012d), Annex J.
- 55.
ICC (2012e), Annex K.
- 56.
Report (2014a), p. 10.
- 57.
Libyan Laws (2011).
- 58.
Zawati (2014b), p. 58.
- 59.
Libyan Laws (2012a).
- 60.
Libyan Laws (2012b).
- 61.
Libyan Laws (2012c).
- 62.
Libyan Laws (2012d).
- 63.
Zawati (2014b), pp. 54–55.
- 64.
Ibid., p. 56.
- 65.
Libyan Laws (2013a).
- 66.
Libyan Laws (2013b).
- 67.
Libyan Laws (2013c).
- 68.
Treaties (1984).
- 69.
Amnesty (2011a), p. 25.
- 70.
Treaties (1998).
- 71.
Zawati (2014a), p. 3.
- 72.
Ibid., p. 27.
- 73.
UN (2013), p. 8.
- 74.
Report (2014a), p. 11.
- 75.
Report (2014b), p. 11.
- 76.
Libyan Laws (2013b).
- 77.
Libyan Laws (2013b). Acceded by Libya on 15 May 1970.
- 78.
Treaties (1966).
- 79.
Following the legislative elections held in Libya on 25 June 2014 for the Council of Deputies, where nationalist and liberal factions won the majority of seats, the Supreme Court has annulled the elections on 6 November 2014, determining that the constitutional amendment made in March 2014 to allow the elections to take place was illegal. Accordingly, it ruled that the elections held in June were unconstitutional and that the parliament and government which resulted from that vote should be dissolved. This ruling, which has deepened political disputes amongst Libyans, has left the country with two rival parliaments and governments, resulted in the killing of hundreds of Libyans, and displaced thousands of citizens in war-torn areas.
- 80.
Supreme Court (2014).
- 81.
HR Watch (2014), p. 42.
- 82.
Libyan Laws (2013c), Article 1.
- 83.
Report (2014a), p. 13.
- 84.
Mancini (2012), p. 104.
- 85.
HR Watch (2015b).
- 86.
Ibid.
- 87.
Report (2014a), p. 16.
- 88.
Report (2015).
- 89.
Amnesty (2012c), p. 32.
- 90.
Amnesty (2012c), p. 39.
- 91.
Bassiouni (2013), pp. 516–517.
- 92.
Report (2013b), p. 29.
- 93.
Heller (2013). Early reports suggest that this amnesty law was drafted in order to address the tribal leaders’ concerns of holding members of relative rebel forces accountable for human rights violations allegedly committed during and after the uprising.
- 94.
Libyan Laws (1951).
- 95.
Libyan Laws (2012a).
- 96.
HR Watch (2012a).
- 97.
Amnesty (2012c), p. 38.
- 98.
Report (2013b), p. 37.
- 99.
Amnesty (2012c), p. 39.
- 100.
ICC (2012a), paras. 75–76.
- 101.
UN (2014), p. 3.
- 102.
Amnesty (2012c), p. 32.
- 103.
The general prosecutor in al-Zawiya, 50 km to the west of Tripoli, told Amnesty International that the judicial system is functioning in difficult and tense circumstances as armed militias control most aspects of life in the city. He added that a group of armed men once stormed the court room and threatened one of the judges as they thought he had imposed a light sentence on an alleged Qadhafi supporter. In another similar incident, a group of armed men abducted a public prosecutor in al-Zawiya, held him for several hours and dragged him to the prosecution’s office demanding that he must be punished for ordering the release of a detainee they accused of committing crimes.
- 104.
Amnesty (2012a).
- 105.
Amnesty (2014c), p. 15.
- 106.
Report (2013b), p. 22.
- 107.
Amnesty (2012b), p. 24.
- 108.
Zawati (2014b), p. 68.
- 109.
HR Watch (2015a).
- 110.
Amnesty (2014c), pp. 19–20.
- 111.
Report (2013a).
- 112.
Fry (2013), p. 224.
- 113.
Akande (2012).
- 114.
Kersten (2014), pp. 195–196.
- 115.
HR Watch (2012b).
- 116.
Goldstone (2012).
- 117.
Particularly, the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1966 and entered into force in 1976.
- 118.
Amnesty (2014a).
- 119.
Report (2012a).
- 120.
Report (2013b), p. 31.
- 121.
Cockburn (2013). Following the US Secretary of State’s confirmation of the Libyan government’s role in the US kidnap of Abu Anas al-Libi from Libya, a militant group, known as the Operations Room of Libya’s Revolutionaries, kidnapped the Libyan Prime Minister Ali Zeidan at gunpoint from a Tripoli hotel on 10 October 2013. He was escorted by 150 armed rebels in a convoy of waiting cars to an unknown location and only later freed when members of another militia group stormed the site where he was being held.
- 122.
Jordanian Ambassador (2014). On 15 April 2014, Fawaz al-Aitan, Jordan’s ambassador to Libya, was kidnapped in Tripoli by masked armed men who attacked his car and shot his driver. The kidnappers had demanded the release of Mohamed Dersi, a Libyan jailed for life in 2007 in Jordan for plotting to blow up the Queen Alia International Airport in Amman. In January 2014, five Egyptian diplomats, the secretary of Tunisia’s ambassador to Libya and a South Korean trade official were abducted. These events were overshadowed by the 2012 incident in which the American ambassador Chris Stevens and three officials were killed when the US consulate in Benghazi was overrun.
- 123.
Stephen (2013). After she had served a 10-month prison sentence for entering the country with a fake passport in October 2012 to visit her jailed father, Anoud Abdullah al-Senussi was snatched on 2 September 2013 by heavily armed gunmen while the judiciary police were escorting her to Tripoli Airport. She was freed one week later.
- 124.
Libyan Laws (2013c).
- 125.
Amnesty (2011b), p. 14.
- 126.
Amnesty (2014d), p. 6.
- 127.
Ibid., p. 4.
- 128.
Libyan Laws (1975).
- 129.
Libyan Laws (1999).
- 130.
Amnesty (2014d), p. 7.
- 131.
Zawati (2014b), p. 69.
- 132.
UN (2014), p. 15.
- 133.
Report (2013b), p. 39.
- 134.
Zawati (2014b), p. 45.
- 135.
Amnesty (2014b), p. 1.
- 136.
ICC (2012f), Annexes J & K.
- 137.
Homes (2012).
- 138.
Report (2014a), pp. 20–21.
- 139.
Mangan and Murtaugh (2014).
- 140.
Treaties (2002).
- 141.
Treaties (2006).
- 142.
Amnesty (2011c).
- 143.
ICC (2012b).
- 144.
ICC (2013d).
- 145.
ICC (2013f).
- 146.
ICC (2013r).
- 147.
Bishop (2013), p. 398.
- 148.
Walker (2014), p. 307.
- 149.
El Zeidy (2008), p. 11.
- 150.
Hobbs (2012–2013), p. 28.
- 151.
Bo (2014), p. 506.
- 152.
Schabas (2010), p. 506.
- 153.
Bishop (2013), p. 392.
- 154.
Dumbryte (2014), p. 3.
- 155.
Stigen (2008), p. 87.
- 156.
Hobbs (2012–2013), p. 28.
- 157.
- 158.
- 159.
ICC (2010), para. 246.
- 160.
Kleffner (2008), p. 161.
- 161.
ICC (2011b).
- 162.
ICC (2011c).
- 163.
The court has never referred to the situation in Libya as an armed conflict or to alleged war crimes although many commentators have described the conflict during the last week of February 2011 as a civil war. This fact was also confirmed by the Court’s Prosecutor when he noted that his allegations did not include war crimes committed during the armed conflict that erupted at the end of February 2011. Accordingly, one may argue that the warrants of arrest should be amended to include war crime committed at a later time, including gender-based crimes mentioned in the Prosecutor’s third report on Libya.
- 164.
ICC (2012b).
- 165.
ICC (2012b).
- 166.
ICC (2012b), para. 97.
- 167.
Ibid., para. 2.
- 168.
ICC (2006a), para. 37.
- 169.
ICC (2012b), paras. 107–108.
- 170.
ICC (2012g), para. 8.
- 171.
Ibid., paras. 8 and 41.
- 172.
ICC (2012h), paras. 369–381.
- 173.
Ibid., paras. 382–404.
- 174.
Ibid., paras. 405–408.
- 175.
ICC (2012i).
- 176.
ICC (2012a).
- 177.
ICC (2013f), para. 220.
- 178.
ICC (2012j), para. 4.
- 179.
Ibid., para. 10.
- 180.
ICC (2012k), para. 18.
- 181.
ICC (2012j), para. 58.
- 182.
ICC (2012a).
- 183.
Ibid., paras. 75–76.
- 184.
Ibid., para. 85.
- 185.
Ibid.
- 186.
ICC (2013a).
- 187.
ICC (2013c), para. 3.
- 188.
ICC (2013b), para. 169.
- 189.
Ibid., paras. 170–173.
- 190.
Ibid., paras. 222–257.
- 191.
ICC (2013f).
- 192.
Ibid., paras. 134–135.
- 193.
Ibid., para. 70.
- 194.
ICC (2006b), para. 31.
- 195.
ICC (2009), paras. 1 and 75–79.
- 196.
ICC (2013f), paras. 77–78.
- 197.
Ibid., para. 134.
- 198.
Ibid., para. 216.
- 199.
Ibid., para. 205.
- 200.
Ibid., para. 206.
- 201.
Ibid., para. 208.
- 202.
Ibid., para. 209.
- 203.
Ibid., para. 209.
- 204.
Ibid., para. 205.
- 205.
ICC (2013g), paras. 11–12.
- 206.
ICC (2014b), para. 45.
- 207.
ICC (2013k), paras. 23 and 27.
- 208.
ICC (2013h), para. 10.
- 209.
ICC (2013l), para. 17.
- 210.
ICC (2013t), para. 10.
- 211.
ICC (2014a), para. 88.
- 212.
ICC (2014b), para. 213.
- 213.
Ibid., para. 146.
- 214.
ICC (2014c), para. 36.
- 215.
ICC (2014d), para. 46.
- 216.
Ibid., para. 66.
- 217.
ICC (2013d), para. 206.
- 218.
Ibid., para. 36.
- 219.
ICC (2013d), para. 160.
- 220.
Ibid., para. 36.
- 221.
Ibid., para. 195.
- 222.
Ibid., para. 39.
- 223.
ICC (2013e), para. 63.
- 224.
ICC (2013i), para. 42.
- 225.
Ibid., para. 44.
- 226.
ICC (2013o), para. 27.
- 227.
ICC (2013p), para. 12.
- 228.
Ibid., para. 45.
- 229.
ICC (2013q), para. 14.
- 230.
Ibid., para. 27.
- 231.
ICC (2013j), para. 163.
- 232.
Ibid., para. 144.
- 233.
Ibid., para. 244.
- 234.
Ibid., para. 93.
- 235.
Ibid., para. 72.
- 236.
ICC (2013r), para. 311.
- 237.
ICC (2013r), para. 312.
- 238.
ICC (2013s), para. 1.
- 239.
Ibid., para. 11.
- 240.
Ibid., para. 19.
- 241.
ICC (2014e), para. 66.
- 242.
Ibid., para. 196.
- 243.
ICC (2013m), para. 1.
- 244.
ICC (2014d), paras. 47–59 and 63–65.
- 245.
ICC (2013n), para. 6.
- 246.
Ibid., paras. 8–16.
- 247.
Svaček (2013), p. 18. One may argue that the PTCI had failed to recognize inconsistency between its ruling on the admissibility of the case against Al-Senussi and its own earlier verdict on the admissibility of the case against Saif Al-Islam, delivered on 31 May 2013. In the latter decision, the PTCI rejected Libya’s admissibility challenge due to the lack of legal representation, which factor it basically ignored in arriving at its decision on the admissibility of the case against Al-Senussi. A recent Chatham House report, entitled “The International Criminal Court and Libya: Complementarity in Conflict,” elucidates three different elements that played a significant role in the adoption of the Court’s divergent decisions: (a) differences in the amount and quality of evidence and testimony required in each case, since the investigation into the case of Saif Al-Islam is broader than Al-Senussi’s (in Saif Al-Islam’s case, the evidence covers Benghazi and other cities, while in Al-Senussi it covers Benghazi alone); (b) the suspects are detained in two different detention facilities, Al-Senussi in a government-controlled prison in Tripoli, and Saif Al-Islam in the custody of a militia in Zintan outside the control of the Libyan authorities; and (c) and the prosecution’s differing opinions regarding the admissibility challenges submitted by the government of Libya. While the Prosecutor endorsed Libya’s request to declare Al-Senussi’s case inadmissible before the Court, he opposed Libya’s admissibility challenge of the case against Saif Al-Islam.
- 248.
Walker (2014), p. 315.
- 249.
Mégret and Samson (2013), p. 573.
- 250.
Fry (2012), p. 40.
- 251.
Heller (2006), p. 259.
- 252.
ICC (2003), p. 42.
- 253.
O’Donohue and Rigney (2012), p. 2.
- 254.
Fry (2012), p. 42.
- 255.
- 256.
ICC (2013d), para. 102.
- 257.
Treaties (1998). In contrast with the principle of legality, which is enshrined in Article 22 of the Rome Statute, this article makes no mention of the failure of a State to incorporate international core crimes into its national criminal code as a valid reason to consider it “unable” to investigate and prosecute these crimes.
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ICC (2013i), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Decision on Libya’s Postponement of the Execution of the Request for Arrest and Surrender of Abdullah Al-Senussi Pursuant to Article 95 of the Rome Statute and Related Defence Request to Refer Libya to the UN Security Council, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (14 June 2013).
ICC (2013j), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Defence Response on Behalf of Mr. Abdullah Al-Senussi to “Application on Behalf of the Government of Libya Relating to Abdullah Al-Senussi Pursuant to Article 19 of the ICC Statute,” Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (14 June 2013).
ICC (2013k), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Decision on the Request for Suspensive Effect and Related Issues, The Appeals Chamber, Case No.: ICC-01/11-01/11 OA 4 (18 July 2013).
ICC (2013l), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Request for Finding of Non-Compliance and Referral to United Nations Security Council, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (23 July 2013).
ICC (2013m), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Separate Opinion of Judge Sang-Hyun Song: Judgment on the Appeal of Mr Abdullah Al-Senussi against the Decision of Pre-Trial Chamber I of 11 October 2013 Entitled “Decision on the Admissibility of the Case against Abdullah Al-Senussi,” the Appeals Chamber, Case No.: ICC-OI/II-OI/IIOA6 (24 July 2013).
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ICC (2013p), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Appeal on behalf of Mr. Abdullah Al-Senussi against the “Decision on Libya’s Postponement of the Execution of the Request for Arrest and Surrender of Abdullah Al- Senussi Pursuant to Article 95 of the Rome Statute and Related Defence Request to Refer Libya to the UN Security Council,” Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (9 September 2013).
ICC (2013q), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Prosecution’s Response to the “Appeal on behalf of Mr. Abdullah Al-Senussi against the “Decision on Libya’s Postponement of the Execution of the Request for Arrest and Surrender of Abdullah Al-Senussi Pursuant to Article 95 of the Rome Statute and Related Defence Request to Refer Libya to the UN Security Council,” Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (20 September 2013).
ICC (2013r), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Decision on the Admissibility of the Case against Abdullah Al-Senussi, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (11 October 2013).
ICC (2013s), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Appeal on Behalf of Abdullah Al-Senussi against Pre-Trial Chamber I’s “Decision on the Admissibility of the Case against Abdullah Al-Senussi,” and Request for Suspensive Effect, the Appeals Chamber, Case No.: ICC-01/11-01/11 (17 October 2013).
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ICC (2012b), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (1 May 2012).
ICC (2012c), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Libyan Government’s Filing of Compilation of Libyan Law Referred to in its Admissibility Challenge, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (28 May 2012).
ICC (2012d), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Libyan Government’s Filing of Compilation of Libyan Law Referred to in its Admissibility Challenge, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (28 May 2012).
ICC (2012e), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Libyan Government’s Filing of Compilation of Libyan Law Referred to in its Admissibility Challenge, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (28 May 2012).
ICC (2012f), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Libyan Government’s Filing of Compilation of Libyan Law Referred to in its Admissibility Challenge, Pre-Trial Chamber I, Case No.: ICC-01/11-01/11 (28 May 2012).
ICC (2012g), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Prosecution Response to Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, Pre-Trial Chamber, Case No.: ICC-01/11-01/11 (5 June 2012).
ICC (2012h), Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Defense Response to the Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, Pre-Trial Chamber, Case No.: ICC-01/11-01/11 (31 July 2012).
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Zawati, H.M. (2016). Prosecuting International Core Crimes Under Libya’s Transitional Justice: The Case of Saif Al-Islam Gaddafi and Abdullah Al-Senussi. In: Diver, A., Miller, J. (eds) Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, Cham. https://doi.org/10.1007/978-3-319-24016-9_10
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