Tag Archives: 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.

Philippines Ratifies the Rome Statute

This week The Philippines became the 117th nation to ratify the Rome Statute and submit its citizens and politicians to the jurisdiction of the International Criminal Court (ICC). The nation offered the following official statement:

“The Philippines, a democracy that champions international law and the rule of law, views being party to the Rome Statute of the ICC as a vital part of the on-going global campaign to end impunity and violence against individuals and to further strengthen a rules-based international system, specifically in relation to international human rights law and humanitarian law,” Philippine Permanent Representative Ambassador Libran Cabactulan said.

“It is a clear signal of the importance with which the Philippines places to this treaty,” he added.

Ambassador Cabactulan further elaborated that, “The ICC also serves as a deterrent against genocide and other heinous crimes and ensures that all perpetrators of these serious crimes of concern are held accountable.

The ICC sits in The Hague, The Netherlands and has jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide within the territory of the 117 nations that have ratified the treaty, or by their citizens, or when the United Nations Security Council refers a situation to the ICC for investigation.  So far, the Security Council has referred the situation in Darfur, Sudan and in Libya.  In response the prosecutor has sought, and obtained, warrants for the arrest of two heads of state, Muammar Qadafi of Libya, and Omar Al Bashir, President of Sudan.

State’s Parties to the Rome Statute are, among other things charged with enforcing the court’s warrants.  Should those with outstanding warrants appear on their territory, those 117 nations are expected to effect the arrest.

Will Muammar Qadafi Appear at the ICC?

When the United Nations referred the situation in Libya to the International Criminal Court (ICC) in February, there seemed to be a theory that it would reduce the violence with which the regime responded, and that it would deter others from responding to uprisings with force.  Neither has quite happened, and now there seems to be a growing movement to ignore the ICC indictment and let Libya determine the appropriate resolution for Qadafi.  Since rebels took control of Tripoli, it has been reported that a bounty of $2 million has been placed on the “arrest or death” of Qadafi, along with amnesty for the claimant.

In July, the ICC issued arrest warrants for Qadafi, his son Saif, and the country’s intelligence chief.  British Prime Minister David Cameron recently appeared to voice support for a Libyan process rather than the ICC process.  This led to at least one commentator to argue to the contrary.  According to lawyer Geoffrey Robertson:

It is too much to expect that Gaddafi can receive justice at the hands of those whom he has repressed for so long, in a corrupt judicial system that he controlled (and so could not be considered “judicial” in any real sense). It must now be reconstructed from scratch, with new judges independent of the National Transitional Council. That gimcrack organisation’s UN spokesman said that it wants to organise Gaddafi’s trial, but it is plainly unable to secure an unbiased legal process when he does fall into its hands. The bounty on his head seems to confirm the NTC’s preference for Gaddafi’s summary execution.

There is a more important reason of principle why the fate of the Gaddafis must not be left to the Libyans. The colonel is charged with crimes against humanity – the mass murder of civilians by perpetrating offences so barbaric that the very fact that a fellow human being can commit them demeans us all. Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie, and almost as many in a UTA passenger jet over Chad a few months later – these are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that Gaddafi face real justice in The Hague and not revenge in Benghazi.

This is a bit of overstatement, given that the mandate from the U.N. Security Council was only to investigate crimes against humanity, war crimes occurring since February, 2011.  Other commentators have questioned whether the ICC has the tools and credibility to carry out the investigation and prosecution, with all the cases going on, the lead prosecutor leaving at the end of his term next year.

Whatever the resolution of the Libya cases, whether or not they wind up in The Hague will be a key test of the credibility of the ICC.  Can the ICC truly be an institution of international justice or will it be a threat rarely fulfilled?