International Justice

CJ354 Endicott College

Would Senussi’s Extradition to the ICC Create Instability in Post-revolutionary Libya?

At the start of the Libyan revolution, both sides were determined to realize two very different ends: Muammar Gadhafi wanted to quash public protest and political dissent, and retain his seat of power, while the opposition wanted to bring an end to Gadhafi’s reign of oppression and guarantee the basic rights and liberties many of us enjoy today. In other words, their aims were fundamentally irreconcilable, as evidenced by the fact that both sides took up arms before they offered to meet at the negotiating-table. And how could one fault the opposition for refusing to negotiate with him? The last time they asked for better living conditions, as was the case in Abu Salim prison, they were told a change in their fortunes was imminent – little did they know that ‘change’ in the Gadhafi-regime’s language meant being gathered into a prison courtyard and subsequently ripped to shreds by grenade shrapnel and machine gun ammunition.

And the perpetrator who ordered that extrajudicial massacre of over 1,200 detainees in 1996 was none other than Gadhafi’s intelligence chief Abdullah Senussi. Of late, there has been significant international concern expressed over whether or not Senussi can be tried fairly in a Libyan court. Amnesty International in particular has lambasted the Libyan government for failing to extradite Senussi to the ICC, which has had an active arrest warrant on him since June 2011 for crimes against humanity. According to the rights group, Libya’s “justice system [is] in disarray.” It goes on to report that Libya’s weak and inconsistent domestic jurisprudence would “[undermine] the right of victims to see justice and reparation” if an unfair trial against Senussi were to be carried out. There is indeed compelling evidence to support the claim that fear of reprisal, torture and revenge, and victor’s justice have infiltrated Libya’s security and legal systems. The arrests of an ICC four-member team when they visited Saif Gadhafi in Zintan exacerbated fears that Libya’s courts are unfit to try Senussi. But Libyans are hearing another side of the story – one that has already made its rounds through many prominent Libyan news sources. The Tripoli Post reports that these members made a national security breach by trying to “deceptively” deliver documents to Saif without first declaring them. Whatever took place in that prison cell, many Libyans now find it hard to trust the ICC with their most notorious criminals.

Many arguments have been made on principle and in staunch defense of global justice. There are many who believe prosecuting Senussi in Libya would undermine the integrity and credibility of international justice institutions – and they are likely right. But then again, so have actions taken, or rather not taken, by the ICC itself, such as the selective justice made readily apparent in failing to indict those responsible for mass atrocities like Bashar al-Assad. More difficult arguments, however, that would involve an intricate study of the Libyan body politic’s social mores, traditions and values, and conceptions of justice, have not yet managed to grace the morning news’ headlines. As Faiza Ahmed Zubi remarked in 2009, before bullets started flying and passions started boiling as Libyans across the country lost loved ones to the war, “We want the criminals who killed our sons [in Abu Salim] brought to justice.” Her interviewer, international journalist and writer Lindsey Hilsum asked, what kind of justice.

“I want Gadhafi, his sons, and all those who helped him to be killed,” she replied, her face impassive, her voice steady.

“Kill them all?” asked Hilsum.

“Yes.”

“Is there no other way?”

She shook her head.

“No.”

(This account was taken from Lindsey Hilsum’s book, Sandstorm: Libya in the Time of Revolution.)

My bringing up this exchange does not mean I am looking to extrapolate this one instance to try to gauge the whole of the Libyan people’s sentimentality on the issue of justice. But the death penalty is widely accepted in the country and many do feel it is the most fitting punishment for men like Gadhafi, Saif, and Senussi – that is direct from my experience spending time in some of Libya’s most populous cities along the coast, as well as from consulting with more knowledgeable Libyans in my two month stay there in August and September of 2012. There is disagreement over how Muammar Gadhafi died – some say he deserved worse while others took a more principled approach in saying he should have been tried in court. But few disagreed on his death itself. The people differ on the means that led to that end, but the end itself is widely accepted as justice. Senussi and Saif in many Libyans’ eyes deserve the same fate. If you want to change their understanding of justice, you are certainly welcome to, but first it is recommended that you read up on Libyan history, debates over the death penalty in Islam (in English and in Arabic), and the current security vacuum that allows for reprisal killings and pockets of fighting to take place on a relatively regular, albeit geographically sporadic, basis. But if you are going to argue a clash of principles under the false assumption that the Libyan people as a whole ascribe to the international community’s ideals of justice as they pertain to what they (the Libyans) would view as “exceptional perpetrators” of mass atrocities, then you will most certainly lose out.

What you can do is start a dialogue within the country, reaching out to the people and asking them to participate in a debate over the partiality and weaknesses in Libya’s current justice system that make it unfit to try Senussi. You can even, and probably should, suggest that a hybrid tribunal be created to deal with Libya’s elite perpetrators, granting the court more legitimacy and the ease of access necessary for the imperatively hasty, public dissemination of information. Perhaps you’ll change a few minds, if not more. But that debate takes time and slow justice has been found to yield increases in vengeance and regional volatility. Subsets of the population are still being ostracized over positions taken during the war and relations between revolutionaries and perpetrators in the widely spoken of “rape of Misrata” haven’t gotten any better. We must ask ourselves if Senussi’s extradition is worth a new wave of revenge killings in cities like Sirte and Bani Walid, which would almost certainly be targeted by (heavily armed) communities outraged at the lack of justice (read: death) done to “the butcher of Libya.” Standing by principle carries costs and it is not right, as many defenders of international justice have done, to tacitly ignore that. Steps should be taken to better inform Libyan communities of institutional deficiencies in the justice system and widely acknowledged Islamic approaches to doing justice, which most Muslims will readily admit do not condone and in fact strongly condemn unfair trials. But do not be surprised if you come across more than a few Faiza Zubis. She shook her head. “No.”

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