THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty

I once again repeat my call to Libya to take all necessary steps possible to immediately arrest and surrender Mr al-Werfalli to the ICC. I also repeat my call on all States, including members of the United Nations Security Council, to support Libya in facilitating Mr al-Werfalli’s arrest and surrender to the Court.



Only when perpetrators realise there will be serious consequences for their crimes can we hope to deter future crimes.


I am dismayed that Mr al-Werfalli appears to remain in a position of command, and allegedly continues to commit crimes with impunity, despite an official statement from the General Command of the Libyan National Army (“LNA”) in August 2017 that Mr al-Werfalli had been arrested and was under investigation by a military prosecutor. I once again call on General Khalifa Haftar, as commander of the LNA and superior of Mr al-Werfalli, to heed my previous call to the LNA to work with the Libyan authorities to enable the suspect’s immediate arrest and surrender to the ICC.


The appalling cycle of violence and impunity in Libya cannot be allowed to continue for the sake of the Libyan people and the security and stability of the country and the region.


ICC Prosecutor Fatou Bensouda, Statement 26 January 2018

The International Criminal Court (ICC) Prosecutor Fatou Bensouda was prompted to speak out and to once again solicit the assistance of the United Nations Security Council (UNSC) concerning the situation in Libya. This time it was about the two car-bombings on 23 January 2018 detonated by unidentified persons outside the Baya’at Al-Radwan mosque in Benghazi, Libya that killed more than 34 civilians, including children, and wounded over 90 others, and a video surfacing the following day apparently showing Major Mahmoud Mustafa Busayf Al-Werfalli executing 10 persons in front of the Baya’at Al-Radwan mosque, purportedly in retaliation for the two car-bombings.

To appreciate Bensouda’s call for assistance from the UNSC, we must reflect back to 2011 when Libya was engulfed in a civil war. On 26 February 2011, acting under Chapter VII of the UN Charter, and consistent with Article 13(b) the Rome Statute, the UNSC passed Resolution 1970, calling on the ICC to investigate the mass atrocities and human rights abuses which occurred (and continue to occur) in Libya during and after the overthrow of Muammar Gaddafi’s regime. In keeping with its obligations, the Office of the Prosecutor (OTP) has unhesitatingly abided – despite the lack of any appreciable assistance from the UNSC. 

Context

In March 2011, the OTP opened an investigation into the situation in Libya, which thus far has produced three cases – all three remaining in the pre-trial stage pending arrests of the suspects.

Originally, arrest warrants were issued against three suspects: former Libyan President Muammar Gaddafi, his son, Saif Al-Islam Gaddafi, and his Intelligence Chief, Abdullah Al-Senussi. The arrest warrant against Muammar Gaddafi was withdrawn following his death. Proceedings against Al-Senussi came to an end after the ICC Appeals Chamber declared the case to be inadmissible (see my take on this absurd decision). Saif Al-Islam Gaddafi had been released in June 2017 from Zintan, Libya (where he has been kept prisoner for six years by a militia group), but his ICC arrest warrant remains unserved, despite repeated efforts by the ICC to have the Libyan authorities bring him to The Hague (see my series on the case against Saif Al-Islam Gaddafi before the ICC and the related issue of amnesties and pardon here, here, here, and here).

In August 2017, a video disseminated through social media showed Al-Werfalli – commander of the Al-Saiqa Brigade in the Libyan National Army (LNA) – summarily executing 33 prisoners. This prompted the OTP to issue an arrest warrant for Al-Werfalli for war crimes for allegedly directing or participating in a series of executions.

In September 2017, more videos surfaced implicating Al-Werfalli’s most senior commander, General Khalifa Haftar, who appears to be instructing and directing LNA fighters to commit war crimes.

In the first video (Arabic language, partial English transcript available here), Haftar gives a speech calling on fighters to take no prisoners: “No mercy. Give up on that story facing the opponent. Never mind consideration of bringing a prisoner here. There is no prison here. The field is the field, end of the story.” According to reports by Human Rights Watch, Amnesty International, and other sources (here and here), LNA fighters followed Haftar’s instructions.

In the second video, Haftar appears to instruct his troops about the siege in Derna, suggesting that even civilians must be deprived of water, food, medical supplies, electricity, and safe passage. For a meticulous analysis of this video evidence and its legal/political implications, see Ryan Goodman’s and Alex Whiting’s post in Just Security, Smoking Gun Videos Emerge: US Citizen, Libyan Warlord Haftar Ordering War Crimes.

And finally, on 24 January 2018, a video was made public showing Al-Werfalli executing 10 persons in front of the Baya’at Al-Radwan mosque, purportedly in retaliation for the car-bombings outside the same mosque the previous day.

Viewpoint

There can be no dilemma on whether the ICC has jurisdiction over the situation in Libya. UNSC Resolution 1970 obligates the OTP to investigate all available evidence in relation to the situation in Libya, including the newly revealed videos implicating Haftar. If deemed necessary, the OTP can (and should) seek appropriate arrests for any alleged crimes charged. The OTP could, for instance, expand the scope of the case against Al-Werfalli to include Haftar for ordering or encouraging the commission of crimes and/or being responsible as a commander for failing to prevent or punish crimes by his subordinates. The OTP could also charge others who assisted or supported Haftar, including citizens of non-member states.

Despite Resolution 1970, Bensouda has had to repeatedly call upon the UNSC to do its bit and to facilitate the arrests and transfer of all charged persons connected to the situation in Libya. I have discussed in previous posts the UNSC’s disgraceful inaction and irresponsibility concerning the situation in Darfur and South Africa’s failure to comply with the ICC’s arrest warrant against Sudanese President Omar Al-Bashir (see here, here, and here). I have also questioned the utility of Bensouda submitting reports and briefing the UNSC (see here). Does it not seem pointless to brief the UNSC on matters in relation to which the three permanent members (those with the most clout) are unwilling to act, even though it concerns the UNSC’s own referral – a referral that must have been supported by all of the UNSC members, since none of them exercised their veto?

Which begs the question:

If the UNSC has the authority to make such referrals and make such demands on the ICC – especially when three of its permanent members (the United States of America, China and Russia) are not signatories to the Rome Statute as thus make no financial contributions to ICC – then does it not have the responsibility to robustly act and assist the ICC in their referrals?      

The answer is an obvious yes. Curiously, the UNSC seems to think otherwise – or so it appears from its unwillingness to assist the ICC Prosecutor in tracking down, arresting, and transferring individuals charged by the OTP to the United Nations Detention Unit in The Hague.

One must question whether the UNSC (or one or all of its permanent members that are not States Parties to the Rome Statute) is not setting up the ICC for failure. Bluntly put: is the Libyan referral the UNSC’s Trojan Horse – an act that presumes to lend credence to and enhance the credibly of the ICC, when in fact the desired result is the opposite – to diminish and denigrate the ICC?

Cynical (or conspiratorial) as it may sound, this argument cannot be dismissed outright. The flip side of the argument is that the UNSC is well intended when it makes referrals such as the one concerning Libya, but due to the ever-changing dynamics of realpolitik, it may not be in the overarching interests of the States or parties involved (or for neighboring States or the international community in general) to place the rule of (international) law above naked pragmatism. In other words, the application of international norms and the accountability expected of those who violate such norms (and I am talking about war crimes and crimes against humanity, and even genocide) must take a back seat to other considerations. So it seems.

Either argument bears onerous consequences for the ICC. The inaction by the UNSC in the face of ongoing atrocities and its unwillingness to assist the ICC carry out the mandate imposed on it through Resolution 1970 feed into a narrative that the UNSC (or at least some of its permanent members) are amenable to the denigration and diminution of the ICC as a viable and sustainable permanent international judicial institution.

Aside             

There is a bit more to this story worth noting, commented on also by others.

Haftar is a dual U.S.-Libyan citizen. Thus, the U.S. could, if it wished, indict and prosecute Haftar in an U.S. court. U.S. citizens can be prosecuted in the U.S. for a number of crimes committed overseas under Title 18 of the US Code, including torture, genocide, and war crimes. Furthermore, the principle ne bis in idem, also known as double jeopardy, does not necessarily apply across domestic jurisdictions: the fact that one State has convicted or acquitted a person will not prevent a different State from prosecuting that person for the same crime. For more on this, see Sabine Gless’s excellent treatment of the ne bis in idem principle in transnational justice in Legal Responses to Transnational and International Crimes – Towards an Integrative Approach, edited by Harmen Van der Wilt and Christophe Paulussen (reviewed here).

Even if there is no extradition treaty between the U.S. and Libya, and even if these States are not mutually bound by a multilateral convention containing an extradition provision (see e.g., Article 44 of the United Nations Convention Against Corruption concerning extradition), the U.S. can make an extradition request based on some agreement or commitment on reciprocity, or make a simple request based on comity.

Given Haftar’s accessibility, the U.S. relations with Libya, and the U.S.’s involvement in the situation in Libya, it is almost a given that were the U.S. to press Libya, Haftar would be turned over to the U.S. authorities. And given the available evidence, the U.S. could either assist the OTP per its inherent responsibilities flowing from Resolution 1970 and have Haftar arrested and shipped to The Hague, or in the alternative, exercise its own jurisdiction and request that Haftar be turned over to the U.S. authorities so he could – as a U.S. citizen – be tried in an U.S. court for crimes alleged to have been committed by him in Libya.

Also worth noting are the reports that the U.S. government, as well as the U.K. and France, are supporting Haftar’s military operations (see here, here, and here). This may explain the UNSC’s inaction and lack of cooperation with the OTP. Considering the circumstances, the actions and/or inactions of the U.S, the U.K., and France could be viewed as aiding and abetting humanitarian law violations. For an excellent analysis of state’s responsibility for aiding and abetting states and armed groups, see posts by Ryan Goodman and Vladyslav Lanovoy in Just Security here and here.

Wrap-up

The video evidence and reports about continuing crimes in Libya should shock the collective consciousness of the UNSC member states, catapulting them into taking action. But don’t hold your breath. The UNSC has failed to take action on other more pressing matters (Darfur is an excellent example).

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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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