Reports that Libya’s former spy chief, Abdullah al-Senussi, was apprehended late last week in Nouakchott, Mauritania, have sparked international discussion about where best to prosecute this wanted war criminal.
France has demanded al-Senussi’s extradition from Mauritania, where he was tried in absentia for an attack on a commercial airliner which killed 170 people, including 54 French nationals. Libyans want al-Senussi to return home for prosecution to face justice for his actions, including the crimes against humanity he committed during the recent conflict and those he committed before the conflict began.
While Libya certainly has a compelling interest in seeing justice performed locally, the national institutions are not yet up to this important task. After decades of mismanagement, significant reforms are necessary to establish a fair judiciary.
Basic institutional reforms that must be enacted include the drafting of a fair penal code through a transparent and inclusive process, the appointment or election of well-qualified judges who have been vetted to eliminate those responsible for human rights violations, and creating a domestic security body that can guarantee the safety and well-being of defendants, witnesses, victims, and others before, during, and after the trial. Because Libya’s national judicial system does not have the capacity at this time to fairly try al-Senussi, he should face trial at the International Criminal Court (ICC).
The ICC was designed as a court of last resort – it would try cases only when national governments were unable or unwilling to do so.
On June 27, 2011, the Office of the Prosecutor of the ICC indicted three individuals relating to the recent conflict in Libya: Muammar Qaddafi, Saif al-Islam Qaddafi, and al-Senussi. Muammar Qaddafi later was killed at the hands of opposition forces and Saif al-Islam Qaddafi remains in custody in Libya.
Physicians for Human Rights (PHR) investigated war crimes in Misrata, a town targeted by Qaddafi’s forces during his brutal crackdown on opposition fighters. PHR later conducted a comprehensive forensic evaluation of a massacre site in Tripoli, during which PHR formulated several necessary steps for Libya’s authorities to take in order to preserve forensic evidence for future trials.
In the short term, there must be a thorough assessment of what capabilities exist for identifying the missing and returning remains, and Libyan authorities should halt improper exhumations until a formal identification and exhumation plan is established. In the long term, Libyan authorities must strengthen judicial institutions and revamp national security forces so that security, human rights, and justice become national priorities during the time of political transition.
Trying al-Senussi at the ICC would be an essential step to bringing justice to victims in Libya. But there is more to be done. Other methods of transitional justice, including institution building, are necessary in Libya so that other perpetrators can be held accountable, victims can receive reparation, and the country can begin to come to terms with its violent past.