If the International Criminal Court allows the current Libyan government to try members of the former regime, the Court would be complicit in the revenge of the new regime against the old, argues Thomas Obel Hansen.
Legal scholars are fiercely debating the International Criminal Court’s (ICC) intervention in Libya. The high level of attention to the ICC’s involvement is natural given that it raises a number of important questions, both with respect to the interpretation of core provisions in the Rome Statute and the geopolitics surrounding the operations of the ICC.
Though the ICC’s intervention was based on a UN Security Council referral, the Council has since largely abandoned the process of seeking international justice for the crimes committed during the country’s civil war. The Security Council and its permanent members have failed to put pressure on the new rulers in Libya to co-operate with the Court – as demanded in the in Security Council resolution that confers the Court’s jurisdiction – and surrender the suspects, as ordered by the Court. Permanent members of the Security Council, including the US and the UK, seem content to let the new Libyan government deal with members of the ousted regime – including the son of Muammar Gaddafi, Saif al-Islam Gaddafi, and former head of the Libya’s intelligence services, Abdullah al-Senussi, against whom the ICC issued arrest warrants in June 2011.
As British lawyer Geoffrey Robertson notes, the Security Council and its permanent members did “absolutely nothing” to support the transfer of al-Senussi from Mauritania to The Hague when the spymaster was in custody there. Instead, he was eventually handed over to the Libyan authorities, who reportedly paid a considerable sum to Mauritania. Indicating disregard for international law and the ICC more specifically, Libya detained the ICC appointed legal counsel for Saif al-Islam upon her visit to Zintan, where he remains detained, thus violating the immunity of ICC staff. The Libyans claimed the legal counsel was “spying”, though no credible evidence to support this claim has been presented. Rather than sanctioning Libya for this, the international community, including the Security Council and organs of the Court itself, showed a level of disinterest which has puzzled observers.