International Justice

CJ354 Endicott College

ICC & Libya – Prosecutor Bensouda gathering evidence for new war crimes charges

In her first presentation to the U.N. Security Council as the ICC’s top prosecutor, Fatou Bensouda stated that Libya should not grant amnesty for war crimes that were committed during the uprising against former Libyan leader Muammar Gaddafi. During this presentation last week, Bensouda mentioned that Libyan authorities previously stated that they would act to ensure that there would be no impunity for crimes committed in the conflict. However, despite this assurance, I think there are legitimate concerns that a new Libyan law would permit amnesty.

On May 2, 2012 a law was passed in Libya that allowed amnesty to be given to perpetrators of crimes if their actions were aimed at “promoting or protecting the revolution” against Muammar Gaddafi. This law allows amnesty for “military, security, or civil actions dictated by the February 17 Revolution” that were carried out by “revolutionaries with the goal of promoting or protecting the revolution.” (A letter from Human Rights Watch to former ICC prosecutor Moreno-Ocampo regarding these Libyan amnesty laws can be read here.)  In the new laws amnesty is not permitted in cases of torture and rape, though other crimes including forced displacement and murder are not explicitly excluded.

Bensouda urged the new Libyan government “to ensure that there is no amnesty for international crime, and no impunity for crimes regardless of who the perpetrator is and who is the victim,” though it remains to be seen if Libyan prosecution efforts will be one-sided and focus on crimes committed by anti-Gaddafi fighters. In an interview detailed in USA Today this weekend, following her Security Council presentation Bensouda also discussed filing new war crimes charges relating to the Libyan civil war, which would be the first charges since the May 2011 arrest warrants were issued for Muammar Gadhafi, Seif al-Islam Gadhafi, and Abdullah al-Senoussi. Though there has yet to be an official ruling with regard to whether Seif al-Islam Gadhafi will be tried at the ICC or in Lybia, Bensouda mentioned she is currently examining allegations that civilians in Tawerga were subjected by Misrata militias to crimes which could constitute war crimes and crimes against humanity.

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2 responses to “ICC & Libya – Prosecutor Bensouda gathering evidence for new war crimes charges

  1. gentryj November 12, 2012 at 7:40 am

    Dealing with your topic, it is notable that the former prime minister, al-Baghdadi al-Mahmoudi, will appear in a Libyan court today for the first case against him (http://www.aljazeera.com/news/africa/2012/11/20121112244246422.html). Extradited from Tunisia earlier this year (despite human rights activist opposition because he may face the death penalty in Libya), al-Mahmoudi declared in July, from his prison cell, that he was innocent and ready to be tried by the Libyan people. My question is: Does the ICC do anything in this case? First of all, the Libyans have him in custody and are clearly willing to prosecute. The question of course is whether they are able to do so in a just manner or whether this will be a politicized trial used to punish Mahmoudi for his association with Gaddafi. However, Mahmoudi did claim that he was ready to be tried by the Libyan people. Was this statement given under duress or does Mahmoudi truly desire to be tried by his own nation? If so, does such a desire get taken into account in considering whether the ICC tries to fight for jurisdiction? These are important questions because they could set precedents for future situations where national and international courts seek to prosecute the same individual.

  2. parvathy249 November 13, 2012 at 11:00 am

    The topic of which cases go to the ICC and which cases are tried in the state of the perpetrator is a contentious one. It’s been widely stated that the ICC will try perpetrators of countries whom do not have the capacity to try them themselves. The argument for Saif al-Islam Gadhafi being tried at the ICC, strikes me as a relatively weak one. Currently, Libya is under the control of the National Transitional Council (NTC). The NTC issued a Constitutional Declaration which declares the statehood of Libya as a democracy with Islam as its state religion, in which the state guarantees the rule of law and an independent judiciary as well as civic and human basic rights. They key here is the independent and impartial judiciary – which Libya has.

    The Libyan “admissibility challenge” is an unconvincing one and should be revised in favor of allowing Libya to try both Saif al-Islam Gadhafi and al-Senussi. Libyan authorities have pledged to attain the highest international standards in their proceedings. Additionally it has been confirmed that Mr. Gadhafi had been kept in adequate conditions of detention, with access to humanitarian organizations, legal counsel, visits from the International Committee of the Red Cross (ICRC), civil society organizations and family members, and had not been subjected to abuse.

    Additionally, the Rome Statute under which the judicial body had been established gives States the primary obligation to conduct proceedings, with the international Court being complementary. Therefore, all reasonable proof and evidence indicates that Saif al-Islam Gadhafi should be tried in Libya and not the ICC.

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