Abdullah Senussi has been labeled the black-box of the Gaddafi Regime, and thus everyone is anxious to get their hands on the intelligence/security operative under the previous Libyan authorities. Now that he has apparently been arrested by Mauritania authorities employing a false identity, the tug of war will begin, but who is likely to get him – France for bombing one of its airliner two decades earlier, the new Libyan Government or the International Criminal Court (ICC). The ICC has already indicted Senussi for grave violations of international humanitarian law – “crimes against humanity.” Further, the ICC is acting under Chapter 7 authority of the UN Security Council (UNSC) pursuant to last year’s resolution. All states, including non-member states of the ICC are obliged to comply with such Resolution. France as ICC State Party and Permanent Member of the UNSC is not likely to try to preempt the ICC. France could though demand access to Senussi on basis of different allegation and charges unrelated to the ICC’s mandate, but most likely only and if the ICC completes its prosecution. The new Libyan authorities are also subject to the UNSC referral of the matter to the ICC. However, the ICC does not exercise exclusive jurisdiction, but rather complementary to that of the state involved, Libya. In fact, the primary state involved generally would have preference in exercising domestic jurisdiction – unless the ICC perceives either a lack of will or capacity to deliver justice. These conditions may exist with respect to Libya in the case of Senussi, as well as Colonel Gaddafi’s son Saif al-Islam who is also indicted by the ICC. The ICC has not particularly had smooth cooperation or necessarily a meeting of the minds regarding Saif Gaddafi’s course to justice. It is still not evident even if central authorities actually have custody over Saif. Further, the apparent summary execution of Colonel Gaddafi and another son Mutassim paint a chaotic situation or when where the rule of law is lacking or both. Consequently, if Senussi is actually in custody, the ICC will be likely to demand custody. Further, any state would be obliged to comply based upon the mandatory effect of the UNSC Resolution. Read Below Previous Blogs for Video Related to the ICC & Libya: By Ambassador Muhamed Sacirbey – Follow @MuhamedSacirbey Facebook = Become a Fan at “Diplomatically Incorrect” Twitter – Follow us at DiplomaticallyX Read Our November 19, 2011 Article on Saif Gaddafi’s Capture – “No More Executions” “…ICC difficulty with … prosecution/trial of Saif Gaddafi that could conclude in execution/death penalty…” With Saif Gaddafi’s capture, Libya’s future does not need anymore executions, carried out as summarily or as consequent of some judicial process. Justice does not require blood but the truth and recognition of the rights and wrongs. The summary killing of Colonel Gaddafi and his son Mutassim may have satisfied some Libyan’s yearning for vengeance after 42 years of tyrannical rule and an unnecessary bloody civil war. However, the killing set back the image of the revolution, knowledge of the truth and respect for the rule of law. (Read: “Does Manner of Gaddafi’s Killing Matter?” diplomaticallyincorrect.org/films/blog_post/does-manner-of-gaddafis-killing-matter-by-ambassador-mo/37685 ). Saif Gaddafi was a potential insurgency threat to Libya’s new government. Now that he is captured, his value is greatest in exhibiting Libya’s commitment to the rule of law and stepping away from blood justice. The execution of Saddam Hussein did little but to the contrary in signaling a new Iraq. (Read: “Gaddafi Son-Would be Insurgent or Defendant?” - diplomaticallyincorrect.org/films/blog_post/gaddafi-son-would-be-insurgent-or-defendant-by-ambassador-mo/38429 The International Criminal Court has a valid arrest warrant out for saif Gaddafi, backed by mandate given to it in Libya by the UN Security Council. (See FILM REPORT - diplomaticallyincorrect.org/films/movie/gaddafi-arrest-warrant-icc-prosecutor/26959 ). The new Libyan authorities cannot simply ignore it. However, by the methodology of the ICC, it is not a court of exclusive but complementary jurisdiction. In other words, the trial of Saif Gaddafi could be carried out in Libya to the extent that a fair trial can be assured consistent with certain minimum standards. We have seen somewhat similar circumstances play out with respect to the ICC and Kenya – Read: “Kenya Prosecutions – ICC” - diplomaticallyincorrect.org/films/blog_post/kenya-prosecutions-by-international-criminal-court-by-ambassador-mo/27068). The ICC would most likely need to sanction a trial of Saif in Libya, if it could conclude that a fair trial consistent also with ICC standards. It will not be a matter of resources, will or qualified persons, as some media have speculated. Fact that Libya is not member of ICC does not remove the UN Security Council mandate of the ICC under UN Security Council Resolution 1970. (See Film Report - “Libya Investigation/International Criminal Court” - diplomaticallyincorrect.org/films/movie/international-criminal-courtlibya-referral-un-security-council/25302). Former international Judge (UN Tribunal for Sierra Leone) pointed out on BBC that the EU had it right by demanding that Saif be handed over to the ICC and that it is now the ICC that has in effect primacy/authority. The issue will be the legacy, the manner by which Colonel Gaddafi and Mutassim Gaddafi were received justice. Further, the ICC does not recognize the death penalty. It was a matter we debated extensively during the Rome Statue negotiations in 1998, and I think we correctly concluded that executions of any sort are neither necessary or most consistent with delivery of justice. The ICC would have great difficulty in endorsing/sanctioning any prosecution and trial of Saif Gaddafi that could conclude in execution/death penalty. Read our February 12, 2012 Article – “Will ICC Assume More Libya Responsibility” The International Criminal Court could be called upon to address human rights abuses, including recent killing of 7 internally displaced persons (IDPs) and ongoing factional fighting. The UN mission for Libya this week had voiced serious concern over the killings of the IDPs, including 3 children and 2 women. It urged authorities to investigate the crime and bring those responsible to justice. UN Security Council Referral to ICC Jurisdiction: However, it is not evident to what degree authorities are either in position bring culprits to justice or perhaps investigate/prosecute impartially. ICC continues to have jurisdiction over such grave violations of international humanitarian law in Libya, and would be in theory called upon to act and assume primary jurisdiction. The recent precedent of the ICC proceeding with cases over former/current Kenyan officials/political candidates can be also applicable in Libya for similar reasons – capacity, timeliness and objectivity in carrying through with the demands of justice. The ICC referral from the UN Security Council in theory was not just about Colonel Gaddafi or even the former regime. Rather it stands for all violations committed on the territory related to the conflict. Ironically, the resolution of the case by the new Libyan authorities with respect to the Colonel’s son Saif Gaddafi, who has been formally indicted by the ICC, but who Libya also wants to prosecute in country, may define the ICC’s perspective of rule of law and justice for the current period in Libya.Further, the killing of Colonel Gaddafi and his son Mutassim Gaddafi (Photo Above) also may impact the ICC’s perspective on the rule of law in the new Libya. Read: “Does Manner of Gaddafi’s Killing Matter?” diplomaticallyincorrect.org/films/blog_post/does-manner-of-gaddafis-killing-matter-by-ambassador-mo/37685. UN Mission to Libya: The attacks upon the IDP’s apparently took place on February 6, 2012 took place at Janzur Marine Academy near Tripoli, where three of the victims were killed, the UN Support Mission for Libya (UNSMIL) said. Four other IDPs – all from the town of Tawerga – were murdered during a street demonstration. UNSMIL called for an investigation and welcomed initial Libyan steps. UN mission in Libya was established by the Security Council last September to support the National Transitional Council (NTC) in its reconstruction efforts, including restoring the rule of law, drafting a new constitution, promoting reconciliation and preparing for elections. See more at our Popular Video Blogs & Current News Event Articles at diplomaticallyincorrect.org/c/war-crimes-justice Photo - Senussi with Colonel Gaddafi