An International Criminal Court (ICC) decision approving Libya’s bid to prosecute former intelligence chief Abdullah Sanussi comes down amid a near breakdown of Libya’s judicial system, Human Rights Watch said today. Sanussi is currently on trial in Libya for, among other charges, serious crimes related to his alleged role in trying to suppress the country’s 2011 uprising, though the proceeding against him raises serious due process concerns.
On July 24, 2014, an ICC appeals chamber upheld an earlier pretrial chamber decision that held Sanussi's case was “inadmissible” and that Libya could therefore prosecute him domestically for the crimes outlined in the ICC’s arrest warrant. The higher chamber rejected Sanussi’s appeal and upheld the pretrial chamber, finding that Libya had demonstrated that it was investigating the same case as the one before the ICC and able and willing genuinely to carry out an investigation. The decision is final and no further appeal is available.
“The Sanussi decision comes out at a time when the challenges facing Libya’s justice system continue to mount at an alarming pace,” said Richard Dicker, international justice director at Human Rights Watch. “Libya has done little to provide Sanussi with basic due process rights, like thousands of others detained across the country who remain without any meaningful access to a lawyer.”
On October 24, a Libyan judge charged Sanussi, Saif al-Islam Gaddafi, a son of Muammar Gaddafi who is also an ICC suspect, and 35 others with serious crimes during the 2011 uprising, and ordered the case sent to trial. The trial began on March 24 in a specially designated courtroom in Al-Hadba Corrections Facility in Tripoli. Subsequent trial sessions took place on April 14, April 27, May 11, May 25, and June 22. The next session is scheduled for August 18.
A recent Human Rights Watch investigation revealed that Libya has failed to grant Sanussi basic due process rights. On January 23, Human Rights Watch interviewed Sanussi in Al-Hadba Corrections Facility, where he is detained. Sanussi told Human Rights Watch that he had not had access to a lawyer of his choosing and described multiple interrogation sessions without legal counsel. Sanussi said he had not had the chance to review the evidence against him.
Human Rights Watch has reported on the challenges facing the Libyan judicial system, particularly the government’s inability to gain control over all detainees in militia-run facilities, including Saif al-Islam Gaddafi. Other challenges include the abuse of detainees in custody, officials’ failure to give them access to lawyers, and the lack of judicial reviews of their cases. These issues weigh heavily on Libya’s ability to ensure that the fundamental rights of defendants, including Sanussi, are respected, Human Rights Watch said.
Throughout 2013, there were reports of threats and physical attacks on lawyers, prosecutors and judges in parts of Libya. Human Rights Watch has documented such attacks by militias and unidentified people in Benghazi, Derna, Zawiyah, and Misrata. At least four judges and prosecutors were among the dozens of victims of seemingly politically motivated assassinations in 2013 by unidentified assailants. Unidentified assailants also attacked courthouses in various regions. On February 8, unidentified people assassinated Libya’s former general prosecutor, Abdelaziz al-Hasadi, in the eastern city of Derna.
The current escalation in violence in Libya risks derailing the country’s fragile transition even further, Human Rights Watch said. The violence includes fighting between rival militias around Tripoli International Airport in recent weeks, which media reports said left numerous dead as well as dozens injured. The precarious security environment has led the United Nations and other international organizations and businesses to temporarily withdraw staff from Libya.
Under article 19(10) of the ICC treaty, the court’s prosecutor may ask the ICC judges to review a finding of inadmissibility if she is fully satisfied that new facts have surfaced that negate the basis of the court's original ruling on the matter.
On May 21, the same ICC appeals chamber confirmed an earlier decision rejecting Libya’s separate bid to prosecute Saif-al-Islam Gaddafi in Tripoli. However, Libya has failed to turn Gaddafi over to the ICC, despite an outstanding obligation to surrender him to the court. On July 11, an ICC chamber noted that Libya's obligation to turn Gaddafi over to The Hague has been outstanding for over a year and indicated that the court may take further action to ensure Libya’s cooperation.
Article 87 of the ICC treaty permits the court to issue a finding of non-cooperation. Because the ICC has jurisdiction in Libya as a result of a Security Council referral, such a finding would be sent to the Security Council for follow-up. The Security Council then has a range of options, including resolutions, sanctions, and presidential statements. Human Rights Watch has repeatedly called on Libya to surrender Gaddafi to the ICC.
“As the country enters another month of chaos, where judges, lawyers and prosecutors are being killed, it’s hard to imagine that Libya can hold any fair trial, much less a trial of this sensitivity and significance,” Dicker said. “We look to the ICC prosecutor to closely follow Sanussi’s case and to ask the court to revisit the ruling if necessary.”