ICC hands off to Libya

Judges at the International Criminal Court (ICC) have ruled that Libya has demonstrated a genuine will and ability to prosecute Abdullah al-Senussi. Libya, they ruled, is free to prosecute the mysterious former Libyan intelligence chief and the mastermind behind a laundry list of Muammar al-Qaddafi-era atrocities. The path is now clear for Libya to prosecute Senussi — and to do so with the blessing of the ICC and the international community. But is the path cleared for Libyans to achieve justice?

Headlines and statements that proclaim "Qaddafi spy chief to be tried in Libya" miss the point. Senussi was always going to be tried in Libya; what the ICC said or ruled was irrelevant. The Libyan public had made it clear: they wanted Senussi tried in Libya, by Libyans. Libyan politicians made it even clearer, reportedly paying $200 million to Mauritania for Senussi’s surrender in September 2012.

Still, the ruling by ICC judges that Libya can proceed in its prosecution and trial of Senussi is significant. It bestows a badge of credibility on Libya’s fledgling efforts at state building. Whether it should have done so will be a matter of much debate.  

Since even before the Libyan revolution concluded, Libya and the ICC have been engaged in a drama-filled fight over where Senussi and Muammar al-Qaddafi’s son and former heir-apparent Saif al-Islam Qaddafi should be tried. Libya, on the one hand, has argued that trying Saif and Senussi is its sovereign prerogative. On the other hand, defense lawyers for Saif and Senussi, along with the international human rights community, have been adamant that a fair trial in post-war Libya is all but impossible. They decry that neither Saif nor Senussi have received adequate legal representation and that both are likely to go the way of the gallows.

Unsurprisingly, legal arguments in the battle over where to try Saif and Senussi have been overshadowed by political developments as the Libyan government, handicapped by a prevalence of wanton militias, struggles to assert stability and order. The stalemate between the ICC and Libya has been punctuated by moments of remarkable controversy, most notably when Saif’s ICC defense lawyers were arrested and detained for three weeks following a visit to their client in Zintan.

While Libyan political figures have made it clear that, come hell or high water, Saif and Senussi will see justice served in Libya at the hands of Libyans, it is easy to forget that the government has also fully engaged the ICC from day one, hiring an impressive roster of legal minds to represent its cases. The reason seems simple enough: while Libya, in no uncertain terms, will ultimately be responsible for bringing Saif and Senussi to justice, getting a seal of approval from the ICC — and, by extension, the international community — matters to a country struggling to build state institutions but yearning to be reinstated as a sovereign and legitimate member of the international community.

ICC Chief Prosecutor Fatou Bensouda has generally been in favor of Libya prosecuting Saif and Senussi. She called their prospective trials in Libya a potential "Nuremberg moment," referring to the trials of senior Nazi figures in Germany following World War II. Undoubtedly, many at the ICC believe that Libya should be given every opportunity to prosecute Saif and Senussi itself. To deny Libya that opportunity would be to treat the new regime as if it were the Qaddafi regime of old. To give justice a chance, they argue, is to give Libyan justice a chance.

But the ICC’s Office of the Prosecutor hardly had a choice in supporting Libya. It has no powerful states willing to back its work there. While the U.N. Security Council referred the situation in Libya to the court in 2011, it quickly abandoned the ICC, leaving the court to its own devices — and it didn’t have many. Security Council states have been virtually silent on the subject of international criminal justice in Libya ever since, not once demanding that Saif or Senussi be transferred to the ICC.

For these states, namely Britain, France, and the United States, the ICC ruling is surely welcome. Senussi could easily have exposed a litany of the dark dealings each had with the Qaddafi regime if he had been put on trial at The Hague. That pulpit has now been eviscerated, no doubt much to the relief of London, Washington, and Paris. 

Some will still think that the ruling comes at an odd time, to put it lightly. Lawyers for Justice in Libya has regularly highlighted a flourishing culture of impunity in the country. In a review of Libya’s judicial system, the International Crisis Group concluded that it was "very much a work in progress" and one that was too often held hostage by unaccountable militias. Just this past week, one of those militias abducted the elected Prime Minister Ali Zeidan only to release him a few hours later. For even the casual observer of Libyan politics, the ICC ruling is likely to come across as confusing — at best.

But, in the end, the ICC had to make a legal case and not a political one based on perceptions of the political instability on the ground in Libya. Whether it made the right legal case or not will undoubtedly be debated for weeks, months, and perhaps even years to come. It is the first-ever ruling of its kind at the ICC, the first finding of inadmissibility by the court in its 11 years of existence.

It has been repeatedly said that the ICC’s system of justice rests upon the foundation of "complementarity" wherein the ICC is a court of last resort and can only investigate and prosecute alleged crimes in those states that are "unable and unwilling" to do so themselves. Both the Senussi and Saif admissibility challenges relied on interpretations of what "complementarity" allowed and what it didn’t. The principle is deceivingly simple in theory. The Libya cases have shown just how complex and controversial it can be in practice.

Does the Senussi ruling mark the end of the acrimonious battle between Libya and the ICC over the fates of Saif and Senussi? Probably not. Saif’s admissibility challenge is still under appeal and this judgment in the Senussi case is sure to be appealed as well. But the inadmissibility ruling likely represents one of the closing chapters in this tumultuous saga. The bigger question is: Will justice be served? At the moment, that remains anyone’s guess and depends on your definition of "justice." 

Mark Kersten is a researcher at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution, specifically examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya. He is also the creator and co-author of the blog, Justice in Conflict.