Where to try Gaddafi’s former spy chief for the part he played during the Libyan uprising is the next big question for the ICC. Abdullah al-Senussi, currently held in prison in Tripoli without access to legal counsel, was for decades the Libyan leader’s “feared right-hand man and security supremo.” There is debate over whether the ICC’s complementarity principle is applicable to the case, since the Libyan justice system is presently weak (without even a justice minister), and could therefore amount to the threshold of “unable genuinely to carry out the investigation or prosecution.” The ICC faces tough decisions on striking a balance between respecting a home-grown judicial solution while guranteeing a fair trial for indicted war criminals.
By Ian Black
Muammar Gaddafi's former spy chief should be tried by the international criminal court (ICC) and not in Libya, where he has been denied legal representation since being handed over by Mauritania six weeks ago, his family has said.
Abdullah al-Senussi, for decades the Libyan leader's feared right-hand man and security supremo, is now in prison in Tripoli. His daughter says he is in poor health and fears he may have been tortured while being held incommunicado and questioned about his alleged crimes.
"My father has no lawyer and no one has been allowed to see or speak to him in the 44 days since he was taken back to Tripoli," Sara al-Senussi told the Guardian. "I tried to find a Libyan lawyer but no one wants to take the case because they are frightened. That is another problem."
The ICC indicted Senussi last year, along with Gaddafi and his son Saif al-Islam, on two counts of crimes against humanity – murder and persecution – allegedly committed in the eastern city of Benghazi.
The Libyan government says he is entitled to legal counsel but is adamant he must face justice in his native land, where he would face the death penalty.
Senussi, 64, is Gaddafi's brother-in-law. He was head of Libya's external security organisation (ESO) in 1988 when the Lockerbie bombing took place. Abdelbaset al-Megrahi, the only man convicted over the bombing, was believed by Britain and the US to have been an ESO officer. In Libya Senussi is widely blamed for a massacre at the Abu Salim prison in Tripoli in 1966, in which 1,200 inmates were killed.
"I want the questioning to be carried out in an open and transparent way so that everyone can listen and see who Abdullah Senussi really is," his daughter said. "Even Superman could not have done all the things they accuse my father of. The ICC is better because they have rules and lawyers. In Libya there is nothing. It's all militias. There's no government, nothing."
Senussi's younger daughter al-Unood has been imprisoned in Libya since entering the country on a false passport this month. "She is a crazy girl," said her sister. "She wanted to try to help our father and she wanted to get a lawyer. She didn't tell anyone she was going."
Senussi fled Tripoli after it fell to the Nato-backed rebels, crossing into Niger and then Morroco. He was detained while trying to enter Mauritania while disguised as a Tuareg chieftain and carrying a fake passport. It is rumoured that Libya paid for him to be handed over.
Speaking from Cairo, Sara al-Senussi described how her father was surrendered to Libyan officials in Nouakchott on 5 September after being told without warning that he was being summoned to see the Mauritanian president.
"He was taken to the airport and when he saw a plane with the Libyan flag he understood what was happening," she said. "I am worried about his health. In Nouakchott he had a prostrate problem and before that he had liver cancer. That could come back at any time. He was also depressed and didn't eat."
An informed source who witnessed his interrogation told a Libyan journalist: "Senussi is still in a state of shock and keeps alternating between shock and anger. But it's only a matter of time till he comes to grip with what has happened."
Senussi is facing separate military and civilian investigations in a prison run by the Tripoli military council. Legal sources said there was confusion over the case because a new Libyan justice minister had yet to be appointed. Last week in The Hague, Libyan lawyers told ICC judges that Senussi and Saif would be tried together in March 2013.
Complicating the question of jurisdiction, the ICC indictment covers only crimes committed after February 2011, so the Abu Salim case is not included.
Under international law Libya is obliged to permit detainees legal counsel and access to relatives. "This is a recurrent and rampant problem in Libya nowadays," said Geraldine Mattioli-Zeltner, of Human Rights Watch. "It is definitely a problem for high-profile defendants like Senussi and Saif and for thousands of others."
Hassiba Hadj Sahraoui, of Amnesty International, said: "Trying Senussi in Libya, where the justice system remains weak and fair trials are still out of reach, undermines the right of victims to see justice and reparation. Instead, he should face the ICC's charges of crimes against humanity in fair proceedings. A year after the end of hostilities, victims of serious human rights abuses – by the former government as well as its opponents – have yet to see justice. What we witness today in Libya is revenge and not justice."
