International Justice

CJ354 Endicott College

Bensouda To Try Libyan Rebels

Recently, Bensouda addressed the UNSC and asked for no impunity whatsoever for any parties involved in the Libyan conflict. She said “I encourage the new Libyan government, scheduled to be sworn in tomorrow, on 8 November, to ensure that there is no amnesty for international crimes and no impunity for crimes, regardless of who the perpetrator is and who is the victim.”

In particular, Bensouda was addressing two Libyan laws:  “One that grants amnesty at the national level for ‘acts made necessary by the 17 February revolution,’ and another which aims to ensure that any act found to be in contravention of international laws and human rights covenants will not be exempt.”

This situation seems to be of direct interest to our class. Does this prosecutorial strategy offer a new direction for the ICC, one aiming to avoid victors justice, and strengthen the legitimacy of the court by appearing more evenhanded in its transitional justice approach? Or is this an example of the ICC demanding justice at the expensive of peace? If there are prosecutions of the rebels, will this destabilize the current transition efforts?


3 responses to “Bensouda To Try Libyan Rebels

  1. yaljarani November 27, 2012 at 11:42 am

    One of the laws you mention here – Law 38 – which grants amnesty for any “acts made necessary by the 17 February revolution” will not be overturned. Libya is struggling to fill the security vacuum formed by the elimination of Gadhafi’s state security forces. The government was only recently able to establish jurisprudence in Bani Walid and even then the people are speaking of revenge for the assault on their city (1). Consolidating the disseminated sources of political authority throughout the country has proven no easy task. Indeed, the General National Congress (GNC) has had a hard enough time protecting itself let alone its constituents. October marked the second time protesters had broken into Libya’s parliament in Tripoli to demand change (2).

    For those who wish to see justice done in Libya, by all means support overturning Law 38. But the potential for violent response is high and it is frightening to think of how Libyan citizens might respond. There was outrage over the fact that the government chose to provide $200 million in aid to Tunisia before addressing its people’s own economic afflictions (3). If it were to start targeting the ‘heroes and martyrs of the revolution’, the backlash would be severe. Libya’s tight-knit communities would not stand idly by as their sons and brothers are handed over to government forces – which brings me to another point. Who are the government forces they would be handed over to? Libya’s security is largely in the hands of freedom fighters. Even in Tripoli you will be hard-pressed to find more police-in-uniform than Kalashnikov-toting youth, sometimes in military garb and other times in civilian clothing (4).

    Is Bensouda’s approach new? Perhaps. Does it have the teeth to convince the Libyan government to risk destabilizing the country by nullifying Law 38? Not at all. That is not to say the strategy is useless; it just does not apply to a volatile Libya as it exists today, nor, in my opinion, should it.

    (1) My father interviewed several residents of Bani Walid after the attack on the city. As recent as one week ago, many residents felt the government’s assault – led mainly by the much aggrieved Misratan freedom fighters – was motivated by revenge rather than security. That combined with the civilian casualties they suffered has led many to call for reprisal attacks against Tripoli.
    (4) These observations are from a two-month-long visit to Libya over August and September of this year.

  2. j.a. December 3, 2012 at 11:47 am

    I am inclined to agree with yaljarani: although there are many compelling reasons why justice should not be selectively applied to the losers of a conflict, the conditions on the ground in Libya are such that overturning Law 38, which provides amnesty to the leaders of rebel factions, is not the best course of action. The present weakness of the central government, and its tenuous (at best) control of the numerous armed groups operating semi-autonomously throughout the country, all but ensure that if the Libyan government were to overturn Law 38—as Prosecutor Bensouda advocated during her presentation to the Security Council—the result would be violence and a marked deterioration of the overall security situation.

    A counterargument could be that prosecuting rebel commanders for war crimes perpetrated during the revolution is necessary to forestall the cycle of violence and impunity. Libyans loyal to Gaddafi who suffered abuses at the hands of the rebels would receive some degree of justice and would (perhaps) feel less inclined to perpetrate future violence against Libyans who carried out the abuses or who aligned themselves with the rebels that did. However, I would argue nonetheless that the present conditions on the ground must take precedence in determining a course of action. The violence that would likely ensue from overturning Law 38 outweighs the possible (but by no means guaranteed) long-term benefits of impartial justice.

    Although I disagree with Prosecutor Bensouda’s statement, it may be worth noting the context in which it was made. The ICC Prosecutor’s statements to the SC are always closely analyzed, and Bensouda likely would have been considered remiss if she hadn’t made some kind of statement opposing blanket amnesty.

    The Court’s actions concerning Libya in the coming months will probably be more important than the Prosecutor’s statement to the SC. Libya has formally requested that Saif Gaddafi be tried by the national court system (where it is generally believed that he would receive a sentence of death by hanging) as opposed to the ICC. The request is being considered by the Pre-Trial Chamber, but the process is shrouded in secrecy, since the Prosecutor has not divulged the conditions in which a domestic trial would be permissible. This seems to be in contravention of the Court’s driving principle of complementarity. The Court should help countries establish the capacity to conduct trials themselves, and only if they are unable (despite assistance) or unwilling, should the ICC try the case in The Hague. The Court’s actions could be interpreted as determination to try Gaddafi in The Hague regardless of Libya’s capacity to do so itself. (Such a high-profile case would certainly bolster the Court’s reputation.)

  3. brandon459 December 4, 2012 at 8:59 pm

    One of the main reasons for why Bensouda was chosen was due to the fact that she was not only very good, but that she would be very relevant to African issues. She handles situations very differently than Moreno-Ocampo does, especially when dealing with the continent of Africa. If Bensouda was brought in, it would show that the ICC has less of a bias against Africa. So to answer your first question, this act does show that the ICC is aiming to avoid victor’s justice, and strengthen the legitimacy of the court by appearing more evenhanded in its transitional justice approach.

    Showing bias, even if it’s within situations in Africa, will lead to loss of legitimacy. It appears that Bensouda just wants there to be a completely fair trial on both sides because it makes the ICC seem non-partisan. If the ICC makes no action, this indirectly supports what is happening in Libya, even though as the others have already stated above, this is simply not applicable to the current situation in Libya. However, by making this statement the ICC is neutral. As we’ve learned in class, if the ICC chooses a side, it turns a judicial matter to a political matter. Especially when dealing with Africa, this is where Bensouda has a greater strength than Moreno-Ocampo.

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