Photo: Saif al Gaddafi/Facebook Ending weeks of speculation over the whereabouts of Saif al-Islam and Abdullah al-Senussi, the two were captured in Libya on 19 and 20 November 2011 respectively. Al-Islam, the second son of deceased Libyan leader Colonel Muammar Gaddafi, and Libya's former intelligence chief al-Senussi were integral to the operations of the pro-Gaddafi forces during the conflict in Libya. Notably, al-Islam was the de facto Prime Minister from February 2012 when the uprisings began in Libya.
The interim Prime Minister of Libya, Abdurrahim al-Keib, has reportedly stated that Libyan authorities will conduct the trials of al-Islam and al-Senussi. This notwithstanding the fact that both al-Islam and al-Senussi are subject to International Criminal Court (ICC) arrest warrants for alleged crimes against humanity committed in Libya since 15 February 2011. Thus the key question that needs to be answered in this situation is how best to deal with the matter, either through Libyan courts or at the ICC.
The ICC, following the referral of the situation in Libya to the ICC by the United Nations Security Council (UNSC) in terms of Resolution 1970, issued arrest warrants for both al-Islam and al-Senussi. Notably, Resolution 1970 places the primary obligation on Libyan authorities to cooperate with and assist the ICC. This notwithstanding, the interim Prime Minister al-Keib assured reporters in Zintani, where al-Islam is currently detained, that the accused would be prosecuted in Libya and that fair trials will be conducted.
The announcement by al-Keib is a welcome one, especially given that it shows a commitment on the part of the National Transitional Council (NTC) to justice by holding the accused accountable for crimes allegedly committed.
The NTC's decision to prosecute al-Islam and al-Senussi in Libya thus provides the NTC with the opportunity to usher in an era of accountability and justice. If the process is properly conducted it would ensure that justice is served for crimes committed during the conflict in Libya. Mindful of the opportunities, it is also important to note that the decision is not without difficulties, as it also presents a unique challenge for the NTC, the ICC and the international community.
The major challenge is in respect of which court will ultimately proceed with the trials. While UNSC Resolution 1970 refers the situation to the ICC and provides that Libyan authorities must cooperate with the ICC, it does not proscribe the possibility of domestic prosecutions.
Stating the position of the ICC on the issue, the ICC spokesperson, Fadi el-Abdallah, reemphasised that Libya has a legal obligation to hand over the two accused to the ICC, but clarified that the decision on where the trial will be conducted is up to ICC judges after consultations with Tripoli. Christian Wenaweser, the president of the Assembly of States Parties of the ICC, reiterated this view.
It should be noted that the ICC, as a court of last resort, should only intervene when a state is unable or unwilling to prosecute individuals suspected of committing international crimes. Given that the NTC has already expressed willingness, what remains to be seen is whether they are able to prosecute the indicted individuals fairly. In order to determine 'inability', the ICC should consider whether, due to a total or substantial collapse or unavailability of its national judicial system, Libya is unable to obtain the necessary evidence and testimony or otherwise unable to carry out its proceedings.
The Libyan authorities would thus have to show that their judiciary is able to effectively and fairly prosecute al-Islam and al-Senussi. Furthermore, in line with customary international human rights law, in order for the trials to be conducted in Libya, the NTC must give the assurance that the death penalty will not be imposed on al-Islam and al-Senussi. Furthermore, the NTC will have to consider the problems of high profile trials after a period of conflict, which must not be underestimated.
It is promising to note that the ICC prosecutor Luis Moreno Ocampo will travel to Libya this week to begin discussions with Libyan authorities on the issue. Moreno Ocampo has stated that the interests of justice and the victims should inform the decision on which court will prosecute al-Islam and al-Senussi. Thus, whether the ICC or the Libyan authorities conduct the trials, the focus should be on ensuring that justice is served on behalf of the victims of the crimes against humanity committed in Libya since February.
Ideally, national and international justice efforts should run concurrently in Libya. Apart from the prosecution of al-Islam and al-Senussi either at the ICC or locally, there will also be a need to prosecute other alleged perpetrators. This is particularly important because the ICC's jurisdiction is limited only to those considered most responsible for international crimes committed after 15 February 2011.
Undeniably, the prosecution of perpetrators of international crimes will require added commitment on behalf of the Libyan authorities. However, this commitment alone will not suffice. It is incumbent not only on the Libyan authorities, but also on the ICC and the international community, to ensure that justice is done.
Ottilia Anna Maunganidze, Researcher, International Crime in Africa Programme, ISS Pretoria Office
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HOWEVER YOU LOOK AT WHAT IS BEING SAID THERE IS NO IMPARTIALITYALL ARE PARTIAL IN ONE WAY OR ANOTHER. THERE WILL BE NO JUSTICE . THIS HAS COME TO LIGHT BECAUSE MAN HAS ASSUMED THAT HE IS MOST POWERFUL AND HE CAN DETRMINE WHAT IS RIGHT FROM WRONG AND THY CAN JUDGE. TODAY WE SEE THAT MEN ARE WEAK AND FALLABLE THY KNOW NOT ONE THING. THEY ARE CONFUSED THEY ONLY MIMICK WORDS THEY ONLY SPEAK IN TONGUES OFM RECITATION. THEY HAVE NO IDEA WHAT IS JUSTICE WHAT IS HONER WHAT IS CULPABILITY THESE THINGS ARE ABSENT IN THEIR RECITATIONS. LET US BE CLEAR THE WEST IS PUSHING HARD IN AFRICA THEY HAVE BEEN GIVEN A IN ROAD BY THESE EVENTS IN LIBYA.THE LIBYANS HAVE BEEN WRONG IN THEIR AIM TO BECOME RIGHTEOUSS THEIR IS NO FIGHTING ALONG SIDE SATAN THEN SAYING OH I MESSED UP!!! IT IS TOO LATE . THE ICC IS NOT CAPABLE OF TRYING THIS BROTHER FIRST AND FOREMOST THEY MADE THIS CLAIM ON HIM BEFORE THEIR WAS EVEN CERTAINTY THAT HE WAS CULPABLE THEY CLAIM HE MURDERED THEY CLAIM THERE WERE MERCENARIES BEFORE THERE WERE. THEY THEMSELVES SENT SOLDIERS TEAMS OF SPECIAL FORCES THEY UNMERCILESSLY MURDERED HUNDREDS OF THOUSANDS THEY THEM SELVES ARE CULPABLE SO THEY CAN NOT CLAIM NEUTRALITY. THESE PEOPLE ARE NO ONES JUDGES THEY ARE BLOODTHIRSTY TYRANTS WHO WANTS TO MONOPOLISE THE WORLDS RESOURCES AND THEY SEEK TO ACCOMPLISH THIS THRU MURDER AND SKULLDUGERY. THYE ARE DISHONES AS THE DAY IS BRIGHT. THEY CONCPIRE WITH AGENTS OF DISSENT AND DISINFORMATION THEY SPEAK OF THINGS THEY HAVE NO KNOWLEDGE. THEY DEENY TRUTH AND FREE WIZE THINKING, THEY ENCOURAGE LEWD AND PERVERTED ACTS AND LEGALISE IT AND GIVE IT HONER AND TRY TO CONVINCE THE RIGHTEOUSS THAT WHAT SEED THEY SEW IS GOOD FOR THEY ARE GOOD, THEY LIARS THEYARE DESTINED FOR THE FIRE THEY ARE SINNERS IDOLATORS SELFISH CONCEITED DEHUMANISERS.THEY COME FROM THE BELLY OF THE BEAST. THEY SEK THE SOULS OF MAN TO HELP TO EASE THERI BURDENS . THEY LIE AND TRICK THEIR WAY THRU LIFE. SAIF AL ISALM GADDAFI SHOULD NOT BE TRIED IN LIBYA OR EUROPE BUT BE HANDED OVER TO A COUNTRY OF IN AFRICA WHERE HE WILL STAY AWAY FROM LIBYA AND ITS POLITICS. HE WOULD BE BOUND AS A MUSLIM TO HONER HIS WORDS .ALL BELEIVERS KNOWS THAT THE AFTER LIFE IS WHAT WE FEAR THE MOST. WHEN WE BOUND OUR WORDS TO THIS AS A MUSLIM TRUTH IS ALL WE CAN UTTER!. LIBYA IF IT IS RIGHTEOUSNESS YOU SEEK THEN BREAK YOUR TIES WITH THE IMPERIALIST IF THEY WANT TO STERAL YOUR MONEY LET THEM HAVE IT . MONEY IS NOT WHAT THIS IS ABOUT, IT IS ABOUT TRUTH JUSTICE AND THE RIGHTEOUSS INTEGRITY OF MUSLIMS AND HUMANITY. THIS IS NOT ABOUT ARABS THIS IS ABOUT ISLAM AND RIGHTEOUSNES. THE QUATARIS ARE NOT RIGHTEOUSS NOR ARE ANY KINGS OR SULTANS OF ANY ORDER OF CIVILISATION. TODAY ISALM IS PRESENTING AN ALTERNATIVE TO THE CAPITALIST WAY OF INJUSTICE THAT WREEKS OF THE FIRE.. THE SEEDS OF RIGHTEOUSNESS IS BEING SEWED ALL OVER THIS GLORIOUS CONTINENT THEY WHO SAY THEY ARE NOT MUSLIMS BUT BEHAVE AS IF THEY WERE ARE STILL JUDGED AS MUSLIMS.THE CONTIENT IS MAJORITY MUSLIM THESE SEEDS HAVE BEENSEWED FOR CENTURIES SINCE TIME BEGAN THEY ARE TH INHERRITORS OF PARADISE. THIS IS CLEAR. THEY NEED GUIDANCE AND WHEN EVER WE SEE RIGHTEOUSNESS WE MUST APPLAUD IT CONGRATULATE IT AN DGIVE THEM THE BENIFT OF THE DOUBT MAN CAN HIDE FROM EACH OTHER BUTR NEVER FROM THE "ALMIGHTY GOD OF ALL CREATION" HE IS THE SEER THE KNOWER OF ALL THINGS. WHEN WE LIE WE ONLY LIE TO OUR SELVES WE MIGHT FOOL SOME ONE ELSE BUT WHATEVER HAS BEEN HIDEN IN THE DARK WILL BE MANUFEST IN THE LIGHT. THESE ARE THE DAYS OF MANIFESTATION EVERYTHING W SEE IS PROPHESY THESE HAVE BEEN SPOKEN OF BY MANY SEERS WHO HAS COME TO DELIVER TE MESSAGE FROM "ALLAH" THE MESSAGE HAVE BEEN CLEAR AND IT HAS BEEN SEWD IN THE FOUNDATION OF THE REVOLUTION AND THOSE WHO SEEK JUSTICE ARE THOSE WHO ARE THE TRUE BELIEVERS OF THE AFTER LIFE. THESE ARE THEY WHO WERE THE FOUNDATION OF ISLAM. THEY ARE NOT BEING JUDGED BY THEIR SECT THIS ISAN WESTERN INTERVENTUION TO DISMISS ISLAM AS ARIGHTEOUSS RELIGION. THOSE ARE THEY WHO SAY THEY ARE CHRISTIANS BUT THEY ARE NOT THEY STILL WALK IN THE WAYS OF "ALLAH. WE MUST BE CAREFULL NOT TO JUDGE WE DO NOT HAVE THE RIGH NOR THE WIUSENESS OF ISLAM WHAT WE HAVE IS THE FOUNDATION OF RIGHTEOUSNES THAT IS ABLE WO WITHSTND AND FOREGO ALL TRAVESTY AND REBUILD WITH STRENGTH AND OVERSTANDING" " FORGET ABOUT THE WEST AND LOOK TO ALL THE RIGHTEOUS PEOPLE ON THE CONTINENT AND SHOW THEM THRU YOUR MANIFESTATION THAT YOU CAN REBUILD AND ASK "ALLAH " TO FORGIVE YOUR CONCEIT AND WEAKNES AND GIVE YOU THE DIRECTION TO BUILD IN HIS HONOR" AFRICA WILL BE GLORIFIED AND AGAIN YOU WILL THEN RESUME TO BE THE LEADERS OF SELF DIGNITY INDEPENDENCE HONOR AND RIGHTEOUSNESS AFRICA WILL BE AGAIN EMPOWERED SHOUDL YOU DO THESE THINGS" POWER TO THE PEOPLE"