Justice in Libya: Qaddafi's Death is Not the End of the Story

Muammar al-Qaddafi’s brutal death at the hands of angry Libyan fighters after his capture in Sirte marks the end of an infamous leader of a brutal regime.  His killing, however, deprived the Libyan people of the opportunity to see him called to account in court for at least his alleged role in murders and attacks on opponents since the rebellion against his rule began in February this year.

But his death cannot mean the end of the story for justice.  Qaddafi’s demise only further underscores the importance and urgency of capturing the two remaining fugitives from international justice—his son, Saif al-Islam, and his head of Military Intelligence, Colonel Abdullah Al-Senussi.

All three men were the target of arrest warrants issued in June by the International Criminal Court—the world’s only permanent court set up to deal with mass atrocities—after the United Nations Security Council became so concerned about the crackdown in Libya that it asked the ICC prosecutor to investigate. 

All three men are said to have planned a violent repression of demonstrators who were inspired by the Arab Spring revolutions in neighboring countries.  Saif al-Qaddafi  is alleged to have recruited foreign mercenaries to join Libyan security forces in order to quell dissent.  Al-Senussi purportedly controlled the security forces, which had opened machine gun fire on demonstrators once the protests began.  These killings prompted more demonstrations—and the government response grew more violent and systematic in response.  Saif even acknowledged the killings on Libyan television in February, stating that “those who had been killed are only hundreds.”  He continued to make public appearances with the aim, according to the ICC prosecutor, of maintaining fear among the population by reinforcing the regime’s willingness to fight to keep hold of its power. The ICC’s judges decided the prosecutor gave them enough evidence to bring the three before the court to answer the allegations against them.

Prosecution of the remaining two fugitives would contribute to realizing the hopes of the Security Council when it referred the crimes in Libya to the International Criminal Court in the first place: the maintenance of peace and security in the face of “gross and systematic violation of human rights.” An ICC prosecution, reinforced by a parallel process of national trials for subordinates accused of similar crimes, would help to re-establish the rule of law in the new Libya—currently tarnished by Qaddafi's apparently summary killing.

The Security Council had also recognized this would not be an easy task, and decided that the Libyan authorities—and other states—had to cooperate with the ICC to achieve this aim (a shorthand term for arresting its indictees and bringing them to court in The Hague).  This imperative remains.

Libya’s National Transitional Council had wanted to see Qaddafi tried at home.  His death avoids such  legal wrangling between the domestic and international justice forums.  But going forward, the Libyan justice system does have an important role to play in helping Libya transition from chaos—and Qaddafi's apparently summary killing—to the rule of law.  The national government must share the burden of accountability with the ICC by starting to plan for domestic trials to bring other high ranking leaders, as well as mid and lower level suspects to book for the widespread and systematic crimes that have taken place.   A focus on how to best share that load so that the victims will get their day in court should be a priority for both the ICC and the National Transitional Council.