'Prosecuting International Core Crimes Under Libya's Transitional Justice: The Case of Saif Al-Islam Gaddafi and Abdullah Al-Senussi'
in Alice Diver, Jacinta Miller, eds., Justiciability of Human Rights Law in Domestic Jurisdictions (Cham, Switzerland: Springer International Publishing, 2016) 216-261.
50 Pages Posted: 10 Feb 2016 Last revised: 12 Dec 2016
Date Written: January 6, 2016
In the wake of the widespread and systematic violence directed by former Libyan government forces and paramilitaries against peaceful demonstrations in Benghazi and other Libyan cities in mid-February 2011, the UN Security Council — pursuant to Article 13(b) of the Rome Statute of the International Criminal Court (the Rome Statute) — unanimously adopted on 26 February 2011 Resolution 1970, referring the situation in Libya to the Prosecutor of the International Criminal Court (ICC or the Court) under Chapter VII of the Charter of the United Nations. Consequently, the Pre-Trial Chamber I (PTCI) of the Court issued three warrants of arrest for Muammar Qaddafi and his son Saif Al-Islam, as well as for Abdullah Al-Senussi, Gaddafi’s intelligence chief. After the killing of Muammar Qaddafi on 20 October 2011, and following the capture of Saif Al-Islam and Al-Senussi, Libya challenged the admissibility of the cases against them. While the PTCI has determined that the case against Al-Senussi is inadmissible before the Court, it rejected Libya’s challenge of the admissibility of the case against Saif Al-Islam, and requested that the Libyan government meet its obligations under the UN Security Council’s Resolution 1970 (2011) and surrender the suspect to ICC custody in The Hague. After examining the ICC’s complementarity regime and its inconsistent decisions on the admissibility of the above cases, and also considering the challenges involved in prosecuting international core crimes under Libya’s transitional justice system, this chapter explores whether the latter is or is not equipped to undertake the prosecution of Saif Al-Islam and Al-Senussi for international core crimes — particularly widespread and systematic attacks — allegedly committed by Libyan government agents against the civilian population during the February 2011 uprising. After an extensive analysis of the above cases, this chapter shows that the post-Gaddafi Libyan courts are not the proper judicial bodies to undertake such prosecutions, and reaches the conclusion that, unless Libya restores its justice system and establishes effective judicial mechanisms and democratic institutions, the country will continue to suffer instability for a considerable period of time.
Keywords: Libya; crimes against humanity; war crimes; International Criminal Court; Saif Al-Islam Gaddafi; Abdullah Al-Senussi; Hilmi M. Zawati; transitional justice; complementarity; admissibility; Rome Statute of the International Criminal Court; due process guarantees.
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