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From:TheBahamasWeekly.com International 
On 20 November 2011,
Abdullah Al-Senussi—International Criminal Court (ICC) suspect and former
director of military intelligence in Libya—was captured in the south of
Libya. His arrest follows the reported capture on 19 November 2011 of ICC
suspect Saif Al-Islam Gaddafi, former Libyan government spokesman and son of
former Libyan leader of Muammar Gaddafi. The ICC is the world’s first and
only permanent international court to prosecute war crimes, crimes against
humanity and genocide.
“The Coalition welcomes the arrest of the ICC suspects as a positive step towards accountability in Libya,” said William R. Pace, convenor of the Coalition for the International Criminal Court—a global network of over 2,500 civil society organizations in 150 countries advocating for a fair, effective and independent ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity. “We now urge Libya’s interim leaders to ensure that this accountability is fully carried through and justice is brought to victims of the alleged crimes committed in Libya,” Pace said. Abdullah Al-Senussi and Saif Al-Islam Gaddafi are both wanted by the ICC for crimes against humanity allegedly committed in Libya since 15 February 2011. Muammar Gaddafi, for whom an ICC arrest warrant had also been issued, died on 20 October 2011. Under the terms of UN Security Council Resolution 1970 (2011), which unanimously referred the situation in Libya to the ICC, the competent Libyan authorities are obligated to cooperate fully with the Court, including in the arrest of ICC suspects. Under the Rome Statute, the Court’s founding treaty, Libyan authorities have primary jurisdiction over crimes committed in their country. However, in light of their obligations under UNSC Resolution 1970—and in keeping with their obligations contained in Article 89(1) of the Rome Statute, in the ICC warrants of arrest, as well as in the request for the arrest and surrender of the suspects to the Court—it is essential that the Libyan authorities facilitate the transfer of the suspects to the ICC. If the Libyan authorities have identified any problems that may impede or prevent the transfer of the suspects they must consult with the ICC without delay. According to the Statute, if the Libyan authorities wish to assert their right to try the suspects in Libya, they must—at the earliest opportunity—challenge the admissibility of the cases on the grounds that they are independently and impartially investigating, or prosecuting, the same individuals for the same crimes at national level. This admissibility determination would be made by ICC judges. The transfer of the suspects to The Hague would not prevent the Libyan authorities from undertaking future domestic proceedings against the suspects for other alleged crimes. On the other hand, should the Libyan authorities allege that the immediate execution of an ICC request for cooperation would interfere with ongoing investigations or prosecutions of a case different from that to which the request relates, they must consult with the ICC and may postpone the execution of the request for a period of time agreed upon with the ICC, but no longer than is necessary to complete the relevant investigation or prosecution in the requested state. If a decision to postpone is taken, the ICC prosecutor may still seek measures to preserve evidence. “At this time, the most important principle to keep in mind is that the Libyan authorities must abide by the rules of the ICC statute so as to ultimately allow the two suspects to face independent and impartial proceedings for alleged crimes against humanity,” Pace stressed. “In this respect, the Coalition calls on the interim government in Libya to ensure the safety of the suspects and the delivery of due process.” Meanwhile, the ICC retains jurisdiction over events in Libya since 15 February 2011, even after UNSC Resolution 2016 which ended the UN mandate allowing military intervention and terminated the no-fly zone. Libyan authorities consequently continue to be obligated to prevent and investigate any potential ICC crimes on their territory. In a public letter sent to the president of Libya’s transitional government on 27 October 2011, the Coalition also urged Libya’s interim leaders to move quickly to ratify key international human rights and humanitarian law treaties, in particular the Rome Statute.
“It
is crucial for the transitional government to demonstrate its commitment to
justice and human rights by moving quickly to ratify key international human
rights and humanitarian law treaties, in particular the Rome Statute,”
Pace added. “It is equally important for the interim authorities to
strengthen the national justice system’s capacity to ensure
accountability and the rule of law.”
ICC writes, "It was reported on 20 November 2011 that Abdullah Al-Senussi - International Criminal Court (ICC) suspect and former director of military intelligence in Libya has been captured in the south of Libya. These important news follow the reported capture yesterday 19 November 2011 of Saif Al-Islam Gaddafi – ICC suspect, former Libyan government spokesman and son of former Libyan leader of Muammar Gaddafi. Abdullah Al-Senussi and Saif Al-Islam Gaddafi are both wanted by the ICC for crimes against humanity allegedly committed in Libya since 15 February 2011 onwards. Muammar Gaddafi, for whom an ICC arrest warrant had also been issued, died on 20 October 2011." CICC Members Details and Advisories: 1. “The Capture of Saif Al-Islam,” Women's Initiatives for Gender Justice, Press release, 19 November 2011, http://www.iccwomen.org/ "The Women's Initiatives for Gender Justice welcomes the 19 November capture of Saif Al-Islam by forces of the National Transitional Council (NTC). "This is an important development for Libya and an opportunity for the NTC to demonstrate its’ respect for the rule of law" said Brigid Inder, Executive Director. 'After months of intense unrest and widespread violence, it is time for the NTC to transition itself into a law abiding, human-rights respecting authority. The murder of former Libyan President, Muammar Gaddafi by NTC forces, should not be repeated with the capture of the leaders son.’ On 26 February, the United Nations Security Council unanimously adopted Resolution 1970, referring the situation in Libya to the International Criminal Court (ICC).The Resolution further imposed measures including an arms embargo, a travel ban on Colonel Gaddafi’s family and top ministers, and the freezing of Colonel Gaddafi’s family assets. An ICC arrest warrant issued in June, charged Gaddafi, Saif Al-Islam and Abdullah Al-Senussi with murder and persecution as crimes against humanity. 'Given the absence of domestic laws adequately addressing crimes against humanity within Libya, the limited institutional capacity, in the short term, of the police to conduct impartial and lawful investigations, and the existence of the ICC arrest warrant, the NTC should transfer Saif Al-Islam to The Hague,' said Inder. …” 2. Libya: Transfer Saif al-Islam to the International Criminal Court,” Amnesty International, Press Release, 19 November 2011, http://www.amnesty.org/en/ “The National Transitional Council (NTC) must transfer Saif al-Islam Gaddafi to face investigation at the International Criminal Court (ICC), Amnesty International said today after reports that he has been captured near the border with Niger. "If reports are correct that Saif al-Islam al-Gaddafi has been captured by the Libyan authorities, he must be handed over to the ICC, and his safety and rights must be guaranteed," said Hassiba Hadj Sahraoui, Amnesty International's Middle East and North Africa Deputy Director. "After what happened after the capture of Mu’ammar and Mu’tassim al-Gaddafi, we hold the NTC responsible for preventing similar harm coming to Saif al-Islam al-Gaddafi, so that he can face justice for his alleged crimes in a fair trial with no death penalty." "Investigating Saif al-Islam before the ICC offers an opportunity to ensure justice, truth and reparation for the victims of the crimes against humanity he is charged with committing against the Libyan people - justice that may have been denied with the apparently unlawful killing of Mu'ammar al-Gaddafi." In June, the ICC issued an arrest warrant for Saif al-Islam Gaddafi, along with Colonel Mu’ammar al-Gaddafi and former Libyan intelligence chief Abdullah al-Senussi, on two counts of crimes against humanity – murder and persecution.” 3.“Libya: Surrender Saif al-Islam Gaddafi to ICC --- Ensure Humane Treatment in Custody,” Human Rights Watch, Press Release, 19 November 2011, http://www.hrw.org/ “Libya’s National Transitional Council (NTC) should uphold its international legal obligations and promptly surrender Saif al-Islam Gaddafi, a son of Muammar Gaddafi, to the International Criminal Court (ICC), Human Rights Watch said today. The forces reportedly holding Saif al-Islam Gaddafi in the town of Zintan and the NTC must ensure that he is treated humanely in custody, Human Rights Watch said. Saif al-Islam Gaddafi, who was reportedly apprehended on November 19 in southern Libya, is subject to an ICC arrest warrant for crimes against humanity in an investigation authorized by United Nations Security Council Resolution 1970. The resolution requires the cooperation of Libyan authorities with any ICC investigation into serious crimes committed in Libya, including the surrender of ICC suspects. “The authorities will send an important message that there’s a new era in Libya, marked by the rule of law, by treating Saif al-Islam humanely and surrendering him to the ICC,” said Richard Dicker, international justice director at Human Rights Watch. “His fair prosecution at the ICC will afford Libyans a chance to see justice served in a trial that the international community stands behind.” Human Rights Watch has documented recent cases of mistreatment in detention in Tripoli and Misrata, as well as apparent summary executions of suspected Gaddafi supporters by anti-Gaddafi fighters. The apparent killings in custody of Muammar Gaddafi and his son Muatassim Gaddafi on October 20 are particular cause for concern about Saif al-Islam’s treatment, Human Rights Watch said. On March 3, the ICC opened an investigation into serious crimes committed in Libya since February 15. The UN Security Council had referred the situation there to the ICC in Resolution 1970 on February 26. On June 27, the ICC judges authorized three arrest warrants, for Muammar Gaddafi, his son Saif al-Islam Gaddafi, and Libya’s intelligence chief, Abdullah Sanussi, who is reportedly still at large. The three were wanted on charges of crimes against humanity for their roles in attacks on civilians, including peaceful demonstrators. These attacks were committed in Tripoli, Benghazi, Misrata and other locations in Libya. Consistent with Resolution 1970, the ICC warrants apply only to events in Libya beginning on February 15. Fair domestic trials for crimes committed before that date will thus be vital to ensuring redress for victims and respect for the rule of law in the country, Human Rights Watch said. Surrendering Saif al-Islam Gaddafi to the ICC would not prevent the new Libyan authorities from preparing their own cases against him and others concerning events since February 15 or before. Security Council Resolution 1970 requires the Libyan authorities to cooperate fully with the ICC. This includes surrendering him to the court. Should the Libyan authorities wish to try Saif al-Islam Gaddafi domestically for crimes in the ICC's arrest warrant, they can challenge – through a legal submission – the court's jurisdiction over the case. The Libyan authorities will have to show that they are genuinely able and willing to prosecute the case in fair and credible proceedings. Demonstrating an ability to fairly prosecute Saif al-Islam Gaddafi would likely require swift and substantial reform of the judicial system, Human Rights Watch said. For the ICC to find that the case is inadmissible, and that it must be returned to Libya for prosecution, the Libyan proceedings must encompass both the person and the conduct that are the subject of the case before the ICC. Ultimately, it is up to the ICC judges to determine whether any national proceedings exist that would trump the court's ability to hear this case. Because the ICC is a judicial institution, its proceedings must run their independent course. “The ICC’s prosecution of Saif al-Islam Gaddafi for crimes he allegedly committed in 2011 will not preclude prosecutions by Libyan courts for other grave crimes committed during his father's rule,” Dicker said. “Right now the NTC is burdened with many challenges, and taking on this legal proceeding will require extensive resources and capacity.” …” 4. “Libya / Capture of Saif al-Islam: NPWJ calls for fair trial,” No Peace Without Justice, Press release, 19 November 2011, http://www.npwj.org/ICC/Libya- " Statement by Alison Smith, Legal Counsel of No Peace Without Justice: “After weeks of waiting, months of conflict and years of repression, finally Saif al-Islam Gaddafi has been captured. As one of the accused masterminds behind the brutal attacks against the civilian population in Libya, it is critical that he be held to account in a fair trial that respects and upholds international standards. "No Peace Without Justice and the Non-violent Radical Party, Transnational and Transparty, welcome the capture of Saif al-Islam Gaddafi and remind those holding him pending the formation of the Libyan Government of the need to ensure he is treated humanely and properly, in accordance with international standards. We are heartened by the actions taken to protect him so far and look forward to that continuing. "We also welcome the expressed intention of the Libyan authorities to cooperate with the International Criminal Court in respect of Saif al-Islam's case. According to the principle of complementarity, the ICC has jurisdiction only if the Libyan authorities are unable or unwilling to investigate and prosecute the crimes of which Saif al-Islam has been accused. They are certainly willing; if they are unable for whatever reason, we expect Saif al-Islam to be transferred to The Hague to face trial before the ICC. "In any event, we call on the international community to support Libya to fulfil its obligations either to investigate or prosecute or to transfer Saif al-Islam to face trial before the ICC. We urge the ICC to be ready to try Saif al-Islam themselves, preferably in Libya, by ensuring it is ready to establish a field presence and begin outreach to victims and the affected communities immediately. We further call on Libya and the international community to intensify efforts either to arrest al-Senussi or determine definitively that he has died. "Today is a critical day for the victims in Libya; it is just the beginning of their long journey to obtain justice and redress. We must support them and support Libya in their efforts to secure justice, the rule of law, democracy and prosperity." SEE ALSO: 5.“Q&A on the Arrest and Surrender of the Three ICC Suspects”, HRW, August 2011, http://www.hrw.org/news/2011/
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