Libya v. the ICC

Oliver Miles

The Libyan government has appealed against the International Criminal Court’s order to hand over Gaddafi’s longtime intelligence and security chief (and brother-in-law) Abdullah al-Sanusi for trial in The Hague. His lawyer, Ben Emmerson QC, said last week: ‘Libya's rebel authorities need to understand that the days of show trials and summary executions are over.’

Sanusi is regarded in Libya as bearing the prime responsibility after Gaddafi for such crimes as the 1996 Abu Salim prison massacre, in which 1200 people died, as well as Lockerbie, the bombing of a French airliner, the murder of Yvonne Fletcher, the disappearance of the Lebanese Shia leader Imam Musa Sadr and the supply of arms to the IRA.

Were Sanusi handed over to the ICC, he could never be tried for these crimes. The Libya mandate given by the Security Council to the ICC relates only to crimes against humanity committed after 15 February 2011. Once out of Libya, Sanusi could never be returned because he would be liable to the death penalty.

This may be one reason there has been no indication of support for the ICC’s actions in Libya from members of the Security Council. Libya is not signed up to the ICC, and the order could only be enforced by further action by the Security Council. Since the US, the UK and France would all like to see Sanusi go on trial for the earlier crimes, such action is unlikely.

What Emmerson calls the ‘rebel authorities’ – the Libyan government, formed after an election generally regarded as clean, is universally recognised – are unlikely to comply with the ‘order’, though for the present a normal dialogue between Libya and the Court continues. There may be a compromise, meaning proceedings in Libya in which the ICC would have some role. If there is no compromise the outcome may be more damaging to the ICC than to Libya.

The reputation of the ICC in Libya has already been damaged by the Melinda Taylor affair. Taylor, an Australian lawyer representing the ICC, paid a visit last summer to Gaddafi’s son Saif al-Islam, whose position is much the same as Sanusi’s (except that he has a better chance being acquitted in the ICC of crimes against humanity committed after February 2011). Taylor and three colleagues were detained by the Libyans who said they were trying to hand over letters to Saif from Muhammad Ismail.

Ismail, notorious in Libya, came to international attention in 2004 when he was named as a colonel in the Libyan intelligence service involved in the alleged Libyan plot to murder Crown Prince (now King) Abdullah of Saudi Arabia. He was also in charge of the business side of Saif’s empire.

Unless the story was simply made up, the letters or copies are presumably in the hands of the Libyans and probably the ICC, but they have not yet been published. There may have been some sleight of hand, particularly as the letters were most likely in Arabic and the Lebanese interpreter would have been the only member of the ICC team who could read them. The obvious inference is that the letters, in which Ismail is said to have asked for blank letters signed by Saif, were part of an attempt to keep Saif’s assets out of the hands of the Security Council and Libya. The assets have been frozen and are probably worth hundreds of millions of dollars.

The allegations about the letters were not denied at the time, or mentioned by the president of the ICC, who went to Libya to collect Taylor and her colleagues after they were released, when he apologised ‘for the difficulties resulting from the train of events’ and promised they would be investigated by the ICC. Since then I understand that the ICC has decided against any inquiry into Taylor's detention but has not explained why. Taylor denied in an interview with the Australian in December that the ICC team smuggled in spying equipment and a coded message.

The Libyan government intends to put both Saif and Sanusi on trial in Libya, preferably in a way that will not damage its international reputation. If there is a public row with the ICC the Melinda Taylor story may provide Libya with useful ammunition. But both the Libyan government and the ICC may prefer to avoid a row and seek a compromise.