Earlier this month, Mauritania returned Libya’s former head of intelligence, Abdullah al-Senussi, to Libya for prosecution. Saif Al-Qadafi, son of Muammar Qadafi was captured in Libya, and the current regime has declined to surrender him to the International Criminal Court. (ICC). In February of 2011, the UN Security Council referred the situation in Libya to the ICC, and the Qadafis and al-Senussi were indicted.
The court indicted Muammar Qadafi, Saif Al-Islam Qadafi and the country’s intelligence chief. Even while Muammar Qadafi was alive some suggested he should face a Libyan rather than an International process.
There has been an ongoing battle between the ICC and Libya for the handover of Qadafi, and Libya has now refused. Qadafi would not face a death penalty at the ICC and would have access to lawyers to present a defense to the charges. During the fight, Libya arrested lawyers sent by the ICC to prepare Qadafi’s defense.
The court has no authority or force to enforce its warrants for arrest and instead relies on the international community and the 121 state parties to the Rome Statute to enforce warrants and arrest those charged by the court. The court has jurisdiction over crimes against humanity, war crimes and genocide occurring in the borders of those countries, or by nationals of those countries, or if the situation has been referred to the court by the U.N. Security Council, as has been the case in Darfur, Sudan, and Libya, which are not signatories to the treaty. The ICC is intended to provide a fair process where a national court cannot, or will not, or if the court does not have the means to provide a fair process.
Libya has recently announced a delay in Saif Qadafi’s trial, indicating that Qadafi and al-Senussi would be tried together. Amnesty International and other groups have argued that the two should go to the ICC for trial. Libya’s standoff with the ICC appears to have resulted in a win for the current government of Libya. The ICC has apologized for the conduct of attorneys sent to meet with Saif Qadafi, resulting in their release. The arrest of ICC lawyers, and the refusal to surrender the accused, have led some to question whether Qadafi can have a fair trial in Libya. Maybe the better question for Qadafi and al-Senussi will be whether or not the world will care whether or not they have a fair trial, or all are satisfied with a show trial for the two.