The International Criminal Court (ICC) has charged three Libyans — Saif Al-Islam Gaddafi, former honorary chairman of the Gaddafi International Charity and Development Foundation, acting as de facto Prime Minister of Libya; Abdullah Al-Senussi, colonel in the Libyan Armed Forces and former head of the military intelligence; and the late Muammar Gaddafi, who served as head of state. The three were indicted for crimes against humanity committed during the Libyan Revolution in 2011. Muammar Gaddafi was killed at the end of the revolution and Colonel Al-Senussi, who is suffering from liver disease, is under detention in Mauritania waiting to be extradited to Libya. Saif Gaddafi is the only one on the list currently detained in Libya.
Since the end of the revolution, the ICC has been trying to get the Libyan government to surrender the accused to the Court at The Hague, but the Libyan government has consistently refused to extradite. Libya has recently submitted a petition to the ICC asking the Court to let the Libyan people try those accused of crimes in their country. The petition expressed Libya’s commitment to post-conflict transitional justice and national reconciliation, which should be respected by the Court. The Hague should not be meddling where governments express serious commitment to bring their accused to justice at home.
The ICC was created as a court of last resort and warrants intervention only when member states fail to act. The Principle of Complimentarity established under paragraph 10 of the Preamble and Article 1 of the Rome Statute makes the Court complementary to national criminal jurisdictions. Therefore, Article 17 requires the court to declare a case inadmissible unless a state is unwilling or unable genuinely to carry out investigation or prosecution. The Libyan government has emphasized its willingness to bring the accused to justice under national jurisdiction. The ICC should withdraw its warrants and let the Libyan criminal system render justice for the Libyan people. We cannot judge the alleged inadequacy of the Libyan justice system if we do not allow it to operate.
The accused are charged with crimes committed against the Libyan people and they must be held accountable to Libyans where their government has expressed commitment to justice and national reconciliation. Libya’s petition stated its genuine willingness and ability to bring the accused to justice in furtherance of building a new and democratic Libya governed by the rule of law. The ICC should give the Libyan people a chance to establish the merits of their revolution, which was supported by the international community, and allow ample opportunity for the accused to confront their accusers at home.
The aim of the ICC is to put an end to impunity for perpetrators of the most serious crimes of international concern and to contribute to the prevention of such crimes. The Court should not intervene where a state has demonstrated willingness to prevent such impunity in compliance with the very reason for which the Court was established. The ICC is becoming a fundamental part of international criminal justice, but it should not usurp national jurisdiction in contravention of its own statute. Ultimately, the justice needed in Libya is that which the Libyan people demand, and it must be rendered within their own justice system, where there is no prima facie reason to believe that the government lacks commitment to pursue such a course.