Ending weeks of speculation over the whereabouts of Saif al-Islam and Abdullah al-Senussi, the two were captured in Libya on 19 and 20 November 2011 respectively. Al-Islam, the second son of deceased Libyan leader Colonel Muammar Gaddafi, and Libya’s former intelligence chief al-Senussi were integral to the operations of the pro-Gaddafi forces during the conflict in Libya. Notably, al-Islam was the de facto Prime Minister from February 2012 when the uprisings began in Libya.

The interim Prime Minister of Libya, Abdurrahim al-Keib, has reportedly stated that Libyan authorities will conduct the trials of al-Islam and al-Senussi. This notwithstanding the fact that both al-Islam and al-Senussi are subject to International Criminal Court​ (ICC) arrest warrants for alleged crimes against humanity committed in Libya since 15 February 2011. Thus the key question that needs to be answered in this situation is how best to deal with the matter, either through Libyan courts or at the ICC.

The ICC, following the referral of the situation in Libya to the ICC by the United Nations Security Council (UNSC) in terms of Resolution 1970, issued arrest warrants for both al-Islam and al-Senussi. Notably, Resolution 1970 places the primary obligation on Libyan authorities to cooperate with and assist the ICC. This notwithstanding, the interim Prime Minister al-Keib assured reporters in Zintani, where al-Islam is currently detained, that the accused would be prosecuted in Libya and that fair trials will be conducted.

The announcement by al-Keib is a welcome one, especially given that it shows a commitment on the part of the National Transitional Council (NTC) to justice by holding the accused accountable for crimes allegedly committed.

The NTC’s decision to prosecute al-Islam and al-Senussi in Libya thus provides the NTC with the opportunity to usher in an era of accountability and justice. If the process is properly conducted it would ensure that justice is served for crimes committed during the conflict in Libya. Mindful of the opportunities, it is also important to note that the decision is not without difficulties, as it also presents a unique challenge for the NTC, the ICC and the international community.

The major challenge is in respect of which court will ultimately proceed with the trials. While UNSC Resolution 1970 refers the situation to the ICC and provides that Libyan authorities must cooperate with the ICC, it does not proscribe the possibility of domestic prosecutions.

Stating the position of the ICC on the issue, the ICC spokesperson, Fadi el-Abdallah, reemphasised that Libya has a legal obligation to hand over the two accused to the ICC, but clarified that the decision on where the trial will be conducted is up to ICC judges after consultations with Tripoli. Christian Wenaweser, the president of the Assembly of States Parties of the ICC, reiterated this view.

It should be noted that the ICC, as a court of last resort, should only intervene when a state is unable or unwilling to prosecute individuals suspected of committing international crimes. Given that the NTC has already expressed willingness, what remains to be seen is whether they are able to prosecute the indicted individuals fairly. In order to determine ‘inability’, the ICC should consider whether, due to a total or substantial collapse or unavailability of its national judicial system, Libya is unable to obtain the necessary evidence and testimony or otherwise unable to carry out its proceedings.

The Libyan authorities would thus have to show that their judiciary is able to effectively and fairly prosecute al-Islam and al-Senussi. Furthermore, in line with customary international human rights law, in order for the trials to be conducted in Libya, the NTC must give the assurance that the death penalty will not be imposed on al-Islam and al-Senussi. Furthermore, the NTC will have to consider the problems of high profile trials after a period of conflict, which must not be underestimated.

It is promising to note that the ICC prosecutor Luis Moreno Ocampo​ will travel to Libya this week to begin discussions with Libyan authorities on the issue. Moreno Ocampo has stated that the interests of justice and the victims should inform the decision on which court will prosecute al-Islam and al-Senussi. Thus, whether the ICC or the Libyan authorities conduct the trials, the focus should be on ensuring that justice is served on behalf of the victims of the crimes against humanity committed in Libya since February.

Ideally, national and international justice efforts should run concurrently in Libya. Apart from the prosecution of al-Islam and al-Senussi either at the ICC or locally, there will also be a need to prosecute other alleged perpetrators. This is particularly important because the ICC’s jurisdiction is limited only to those considered most responsible for international crimes committed after 15 February 2011.

Undeniably, the prosecution of perpetrators of international crimes will require added commitment on behalf of the Libyan authorities. However, this commitment alone will not suffice. It is incumbent not only on the Libyan authorities, but also on the ICC and the international community, to ensure that justice is done.

Ottilia Anna Maunganidze, Researcher for the International Crime in Africa Programme, ISS Pretoria Office