What ever happened to

Saif Gaddafi and Abdullah Al-Senussi?

In June 2011, a few months after the uprising in Libya began, Colonel Gaddafi, his son Saif and his head of security, Abdullah Al-Senussi, were indicted for crimes against humanity by the International Criminal Court (ICC). They were indicted even though Libya was not a party to the ICC.

This came about because on 26 February 2011, the Security Council voted unanimously in Resolution 1970 to refer events in Libya to the ICC. To be precise, it decided

“to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;” [1]

Such an extension in the jurisdiction of the Court is allowed under Article 13(b) of the Rome Statute of the Court if:

“A situation in which one or more of such crimes [war crimes, crimes against humanity and genocide] appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;” [2]

Amongst those states who voted for this referral were 5 states (China, India, Lebanon, Russia and the US) who are not parties to the Rome Statute and don’t accept the jurisdiction of the ICC – which is blatant hypocrisy. Three of those (China, Russia and the US) are veto-wielding permanent members of the Security Council and therefore will never be referred to the ICC by the Security Council no matter what crimes they commit.

ICC issues warrants

Empowered by the Security Council, Luis Moreno-Ocampo, then the ICC Prosecutor, applied for warrants for the arrest of Colonel Gaddafi, his son Saif and his head of security, Abdullah Al-Senussi, for crimes against humanity, specifically, for murder and persecution in the days following 15 February, contrary to Articles 7(1)(a) and 7(1)(h) of the Rome Statute [3]. These acts were allegedly ordered by these three individuals in furtherance of a plan, drawn up after the events in Tunisia and Egypt, to quell opposition to the Gaddafi regime. The ICC Pre-Trial Chamber granted the warrants on 27 June 2011.

The killing of Colonel Gaddafi on 20 October 2011 (which brought great joy to US Secretary of State, Hillary Clinton – “we came, we saw, he died”, she said jubilantly [4]) rendered the ICC warrant for his arrest obsolete. And the Libyan authorities have refused to execute the warrants for his son or his head of security and hand them over to be tried by the ICC. They want to try them, and no doubt execute them, in Libya.

The ICC is supposed to be “complementary to national criminal jurisdictions” (to quote from Article 1 of the Rome Statute), meaning that it only indicts and tries individuals when domestic courts are unwilling or unable to do so.

Saif Gaddafi

On 1 May 2012, the Libyan government challenged the admissibility of the case against Saif before the ICC because Libya was willing to try him. A year later on 31 May 2013, the ICC Pre-Trial Chamber rejected this challenge on the grounds that the Libyan authorities had not sufficiently demonstrated that the domestic investigation covers the same case as that which is before the ICC [5]. An appeal against this decision was rejected by the ICC Appeals Chamber on 18 July 2013 [6]. However, Saif has yet to be handed over to the ICC.

In fact, Saif is still in the custody of the Zintan militia, which has refused to hand him over to the authorities in Tripoli for trial with other members of the former regime (see Asharq Al-Awsat, 7 November 2013, [7]). He is being tried in Zintan, which he apparently prefers to Tripoli, fearing for his life if he was transferred to Tripoli. He appeared at the Zintan Court of First Instance in mid-September on charges of “communicating with foreign sides to damage Libya’s national security” and his trial was adjourned until mid-December.

Abdullah Al-Senussi

The Libyan government has also challenged the admissibility of the case against Abdullah Al-Senussi before the ICC, because Libya was willing to try him. However, in this instance the Pre-Trial Chamber accepted on 11 October 2013 that the case was inadmissible before the ICC, since “the case against Mr Al-Senussi is currently subject to domestic proceedings conducted by the Libyan competent authorities” and that “Libya is willing and able genuinely to carry out such investigation” [8]. That amounts to a death sentence for Mr Al-Senussi. The defence and the prosecution can appeal this decision.

David Morrison

15 December 2013

References:

[1] www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970%282011%29

[2] www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

[3] www.icc-cpi.int/iccdocs/doc/doc1099314.pdf

[4] www.youtube.com/watch?v=J_x04Gn3-2g

[5] www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr911.aspx

[6] www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr934.aspx

[7] www.aawsat.net/2013/11/article55321644

[8] www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr953.aspx