The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills

 

On 15 August 2017, the International Criminal Court (ICC) issued an arrest warrant for Libyan military commander Mahmoud Mustafa Busayf Al-Werfalli, accused of having committed or ordered 33 murders in Benghazi or surrounding areas from June 2016 to July 2017. The supporting evidence suggests that the Office of the Prosecutor (OTP) has overwhelmingly met the rather low threshold of “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (Article 58(1)(a) of the Rome Statute) in charging Al-Werfalli. Should this case to go to trial, Al-Werfalli will find that he has stacked the deck against himself: video footage of him conducting summary executions of captives published on social media.

As cases go, this is a prosecutor’s dream. For the OTP, this must have been one of those cases that is just too good to pass up. But is it? The 33 victims deserve justice, but is the ICC able to deliver it? And at what cost?

Thus far, the ICC has proved to be impotent when it comes to having anyone from Libya arrested for prosecution at the ICC. The Gaddafi case is a stark example of just how ineffective the ICC is in having Libyan authorities cooperate – despite a unanimous UN Security Council Resolution 1970 referring the situation in Libya to the ICC. And never mind the Pre-Trial Chamber’s (PTC) absurd decision that Muammar Gaddafi’s intelligence chief Al-Senussi could actually get a fair trial in Tripoli (see my take on the PTC’s decision here).

Despite Resolution 1970, the Libyan authorities (and I use this term loosely, since there appear to be many who lay claim to the title) have no intention or ability to cooperate with the ICC (see my post on the Gaddafi case here). This should have been obvious to the OTP well before it started spending time and resources to charge Al-Werfalli. It must have known well before the issuance of the arrest warrant that the Libyan National Army (LNA) – one of the rival groups that defected from the Libyan army during the revolution and is currently competing with the UN-backed Government of National Accord (GNA) – would not be turning him over (see here and here).

So why tilt at this windmill – even if it is within reach?  Optics-wise, it may garner short-term currency, but in the long-term, this short-sightedness  feeds into the narrative that the ICC is only interested in targeting Africans. Kevin Jon Heller in his Opinio Juris post This Is Why People Think the ICC Is Unfairly Targeting Africa nails it. Several African states have repeatedly complained – with some legitimate reason – that the ICC is only targeting Africans (see my posts on Africa’s ICC exodus here and here).

After the OTP issued its Policy Paper, one would have thought that it would turn its attention to other areas and other continents, giving particular consideration to “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land….” (See my analysis of the OTP’s Policy Paper here).

I have posted on Philippine President Rodrigo Duterte’s extra-judicial killings, about which he has bragged openly and repeatedly. Like Heller, I have wondered whether the OTP will or should venture into a preliminary examination.

In my last post on Duterte, I discussed the 77-page communication submitted by Filipino lawyer Jude Josue L. Sabio, requesting that President Rodrigo Duterte and 11 other Filipino officials be prosecuted for the killings of thousands of people over three decades (from the time Duterte was mayor of Davao City with the Davao Death Squad, to the thousands that have been gunned down since he was elected President).

Since then, there have been scores more killings, with many more to follow in the years to come (Duterte has five years remaining in his presidential term).  And if he keeps up the killings at the current pace – which he seems determined to do – by the time his term is up he will have been responsible for 72,000 deaths.

Most recently, Duterte publicly threatened to order the shooting of human rights activists for criticizing his drug war. Being a man of his word, the threat is unlikely to prove idle.

Seems like Duterte is courting ICC Prosecutor Madame Fatou Bensouda for a rendezvous at the ICC, but she seems aloof, distracted by a bright shinny object; the allure of a quick public relations score that comes with charging Al-Werfalli – even if it is leads to nowhere. Maybe she knows more than the rest of us and will prove us wrong – that come hell or high water, Al-Werfalli will sit in the ICC dock.  But I doubt it.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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