Security Council must sanction Libya over al-Senussi trial, says top barrister

By Rebecca Lowe

Abdullah al-Senussi

A leading human rights lawyer has demanded that the UN Security Council imposes sanctions on Libya if the country fails to hand over a senior official of the Gaddafi regime to the International Criminal Court.

Libya is in ‘flagrant violation’ of international law by refusing to relinquish custody of former intelligence chief Abdullah al-Senussi to The Hague, Ben Emmerson QC has claimed. Libya has announced it intends to try al-Senussi within a month, and is likely to impose the death penalty.

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Al-Senussi was one of the closest confidants of Libya's former leader Colonel Muammar Gaddafi. He is wanted by the ICC, along with Gaddafi’s son Saif al-Islam, for two counts of crimes against humanity – murder and persecution – alleged to have been committed against protesters at the start of the Libyan uprising in February 2011.

Emmerson, counsel to al-Senussi, issued an emergency application to the ICC’s Pre-Trial Chamber on 9 January urging the judges to order the Libyans to comply with their legal obligations. He has also written to the president of the Security Council, Masood Khan of Pakistan, and British Foreign Secretary William Hague to ask them to use their influence to put pressure on the Libyans.

The former spy-chief fled to Mauritania in March 2012 and Emmerson is particularly interested in evidence of a deal struck by Libya for al-Senussi’s return. Emmerson has requested from the UK foreign secretary ‘any information in [the UK’s] possession’ concerning the rendition arrangements between Libya and Mauritania in September 2012, including whether UK officials took part in any questioning.


  ‘It is absolutely clear that there is a current, subsisting and binding obligation on Libya immediately to surrender al-Senussi to the ICC'

Ben Emmerson QC

A Foreign Office spokesman confirmed receipt of Emmerson’s letter, but said the foreign secretary would need time to respond fully. He said: ‘We continue to engage with the Libyan authorities on their plans following the extradition of al-Senussi back to Libya. We have underlined with the Libyan authorities that it is important al-Senussi is detained in accordance with Libyan law, that he is held by a legitimate authority and that any potential criminal trial held in Libya meets international standards.’

Speaking exclusively to IBA Global Insight, Emmerson stressed that the ICC judges should ‘not be cowed by the lawless threats of an emerging nation’.

‘It is absolutely clear that there is a current, subsisting and binding obligation on Libya immediately to surrender al-Senussi to the ICC,’ he said. ‘The Security Council now needs to take action. If Libya fails to comply, sanctions should be imposed. 

‘Mr al-Senussi has been charged with some of the most serious offences imaginable – crimes of exceptional gravity – but that can never justify or excuse a flagrant breach of international law that has the effect of denying a fair trial and a process that would inevitably culminate in his execution. The days of victors’ justice are over.

‘Either we believe in the international rule of law, and a fair trial even for those accused of the worst international crimes, or go back to the days when we left it to the dogs of war to tear their enemies to pieces. It’s a stark choice. This is a critical moment in the history of international criminal law.’ 

Prosecutors believe al-Senussi’s knowledge of Gaddafi’s regime could help expose some of its most notorious acts. In 1996, Libyans allege he was involved in the massacre of over 1,000 inmates at the Abu Salim prison in Tripoli. Three years later he was convicted in absentia by France for his alleged role in the 1989 bombing of a French passenger plane, in which 170 people were killed.

It is also believed he may have knowledge about the 1988 Lockerbie bombing, when a Pan-Am flight from London to New York exploded in Scotland, killing 270 people.

Luis Moreno Ocampo

Speaking to IBA Global Insight, former ICC chief prosecutor Luis Moreno Ocampo conceded that Libya needed permission from the ICC judges to try both men, but said the Libyans had clear jurisdiction over the case. The controversial Argentine has previously been criticised by the ICC Appeals Chamber for perceived bias in favour of Libya.

‘The ICC is not an appeal court and the primacy is with Libya, the national system,’ Ocampo said. ‘And this is what the ICC should decide […]. The new government wants to show to the world that they can do justice here. For them, it is a matter of pride and dignity that they can conduct this themselves.’

The ICC issued arrest warrants for al-Senussi and Saif al-Islam in June 2011. Libya is not a member of the Rome Statute, which brought the ICC into being, but the Security Council has the power to refer non-members to the Court.

Under the principle of complementarity, the ICC can only accept jurisdiction when a member state is unable or unwilling to do so itself. Following an admissibility challenge from Libya, the judges of the Pre-Trial Chamber are currently in the process of deciding whether al-Islam could be afforded a fair trial on domestic soil and have given a deadline of 23 January for further reassurances.

However, Libya has not officially challenged the jurisdiction of the al-Senussi case and is therefore in violation of international law by not handing him over to the Court.

On 6 January, Libya’s justice minister Salah Maraghni announced the trial of al-Islam, al-Senussi and former prime minister Baghdadi al-Mahmoudi ‘as soon as questioning is completed within the next month’. Libya was not obliged to hand over custody to the ICC, he said.

Emmerson wrote in his submission to the ICC: ‘It is clear that intervention by the Security Council is now the only means of securing compliance by Libya with its international obligations.’

A spokesperson for the ICC stressed that it ‘is up to the judges to make a finding in cases of non-cooperation and to inform the Security Council to take necessary actions’. 

He said: ‘We are not in a position to speculate on the findings that judges would make – or not. It is however clear that the ICC is part of the international justice system and strives at ensuring the highest principles of international law, as well as respecting defence rights.’

Emmerson also asks that the Chamber refer the conduct of Mauritania to the Council. Despite being a non-member of the Rome Statute, Mauritania is legally obliged to cooperate with the ICC when a situation is referred by the Security Council by virtue of being a member of the UN.