Tag Archives: Libya

Al-Senussi Case to Stay in Libya

Pre-Trial Chamber I of the International Criminal Court (ICC) in The Hague has decided the case against Abdullah Al-Senussi, former Libyan Intelligence Chief is not admissible.   The decision, issued in October, was a response to the challenge to admissibility made by Libya. The case began when the U.N. Security Council referred the case to the ICC in 2011.  Ultimately Col. Muammar Qadafi, his son, Saif Al-Islam Qadafi and Al-Senussi.

Col. Qadafi was killed in the end of uprising in Libya, and Saif Al-Islam Qadafi and Al-Senussi are in the custody of Libya, which has refused to surrender them to The Hague.  In a 152 page opinion, the court evaluated the Libyan case against Al-Senussi, the procedural safeguards and process available to Al-Senussi in Libya and whether or not Libya is unable or unwilling to handle the case.  Ultimately the court determined:

[T[he Chamber concludes that the same case against
Mr Al-Senussi that is before the Court is currently subject to domestic
proceedings being conducted by the competent authorities of Libya - which
has jurisdiction over the case - and that Libya is not unwilling or unable
genuinely to carry out its proceedings in relation to the case against
Mr Al-Senussi. The case against Mr Al-Senussi is therefore inadmissible before
the Court pursuant to article 17(1)(a) of the Statute.

The representatives of Al-Senussi at the ICC have appealed the determination arguing the case should be heard by the ICC.  The court has not ruled on Libya’s request to also dismiss the case against Saif Al-Islam Qadafi.

Libya Cases not Going to ICC

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.

As previously described in this blog:

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.

Saif Qadafi to Stay in Libya

The Libyan authorities have announced that Saif Al-Islam Qadafi will stay in Libya for trial.  His trial will begin next month. Saif Qadafi, the son of Muammar Qadafi is one of three person indicted by the International Criminal Court (ICC) in The Hague, Netherlands.  Muammar Qadafi was also indicted but did not survive the fall of Tripoli.

The United Nations Security Council referred the situation in Libya to the ICC in February 2011.  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.

Muammar Qadafi, and Omar Al-Bashir of Sudan are the first sitting heads of state to be indicted by international criminal tribunals, neither has yet appeared to face charges.

What is Left of the Victims Right to Select Counsel?

Trial Chamber IV of the International Criminal Court, ICC, recently ordered that in the Sudan case currently moving towards trial, two lawyers will be representing all victims at the court.  The case, against alleged rebel leaders Abdallah Banda Aadaker Nourain and Saleh Mohammed Jerbo Jamus, is proceeding to trial on the following charges:

  • violence to life, whether committed or attempted, within the meaning of article 8(2)(c)(i) of the Statute;
  • intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute; and
  • pillaging within the meaning of article 8(2)(e)(v) of the Statute.

The court had previously confirmed the charges, a proceeding roughly equivalent to a probable cause hearing.  The question now, is can two lawyers adequately represent the victims in the case?  A question previously pondered here.   The court in the Bemba case, which has by far the largest number of victims, over 1,600 so far, started the trend by ordering two lawyers from the Central African Republic should be appointed as counsel.

Article 75 of the Rome Statute gave victims a right to seek reparations:

Article 75
Reparations to victims
1. The Court shall establish principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. On this basis, in its decision
the Court may, either upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in respect of,
victims and will state the principles on which it is acting.
2. The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation.
Where appropriate, the Court may order that the award for reparations be made
through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite and shall take account
of representations from or on behalf of the convicted person, victims, other interested
persons or interested States.
4. In exercising its power under this article, the Court may, after a person is convicted of
a crime within the jurisdiction of the Court, determine whether, in order to give effect
to an order which it may make under this article, it is necessary to seek measures
under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this article as if the provisions of
article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the rights of victims under
national or international law.

Article 68, Paragraph 3 gives the victims a right to participate and to counsel during the proceedings:

Where the personal interests of the victims are affected, the Court shall permit their
views and concerns to be presented and considered at stages of the proceedings
determined to be appropriate by the Court and in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial. Such views and
concerns may be presented by the legal representatives of the victims where the Court
considers it appropriate, in accordance with the Rules of Procedure and Evidence.

The ongoing question to be resolved will be, does the court’s practice of appointing very few lawyers prejudice that right?  Will the lawyers who undertake the responsibility be given the resources and opportunities to maintain proper contact with their clients?

The ICC, based in The Hague, Netherlands, has jurisdiction in the 118 nations that have signed on to the Treaty of Rome, or over their citizens, or in case referred to it by the U.N. Security Council, so far Libya and Darfur.  The court investigates charges of war crimes, crimes against humanity, and genocide occurring within its jurisdiction since the founding of the court which was in 2002.