By Mark Kersten

The International Criminal Court (ICC) has issued an arrest warrant for Libyan militant Mahmoud Mustafa Busayf al-Werfalli.

The court claims that Werfalli — who operates under the Libyan National Army (LNA) — committed the war crime of murder over a series of brutal executions. With so many deserving perpetrators around the world, why go after Werfalli and what might this mean for Libya and the ICC itself?

The ICC has sought to address atrocities in Libya since the U.N. Security Council referred the country to the court in 2011. That includes its ongoing and tumultuous struggle to prosecute Colonel Muammar Gaddafi’s son, Saif al-Islam. But in those six years not one of the ICC’s five targets in Libya has ever faced judges in The Hague.

Under current chief prosecutor Fatou Bensouda, however, the ICC is increasingly opportunistic in its approach. Rather than targeting the most responsible perpetrators of international crimes, the court increasingly issues arrest warrants under circumstances the prosecutor believes there to be a high probability that suspects will be surrendered.

In Mali, Bensouda indicted Ahmad al-Faqi al-Mahdi for the war crime of destroying UNESCO-protected heritage sites in Timbuktu. When the warrant was issued, Mahdi was already in a Niger prison. Unusually for ICC targets, it took just days from the court issuing an arrest warrant to al-Mahdi standing before judges in The Hague. This seems to be the logic behind the targeting of Werfalli.

The LNA’s potential response

The self-styled LNA, for which Werfalli fought, is “a coalition of army units, ex-revolutionary groups and tribal militias” based in Eastern Libya that purports to combat Islamist terrorism. In May, following a series of brutal executions caught on film, LNA leader General Khalifa Haftar stood by his commander, rejecting Werfalli’s resignation and declaring that he was “one of the sincere fighters who has given a lot in the battlefields for years.”

The ICC prosecutor initially and secretly requested an arrest warrant for him on Aug. 1 and, according to the LNA, Werfalli was arrested, and investigations into his alleged crimes were launched, the very next day. While details remain sketchy, the proximity of these events is too close to be coincidental.

In response to the ICC’s actions, a LNA official said, “[w]e announce our readiness to cooperate with you [the ICC] in informing you of the result and course of the judicial case.” Neither the LNA, nor its supporters, have any intention of surrendering al-Werfalli to the ICC. But it remains to be seen whether they will genuinely investigate and prosecute Werfalli or simply run a sham probe into his alleged crimes.

Undermining victors justice

Some see the move against Werfalli as significant in part because it breaks with a controversial pattern of ICC interventions. The ICC generally pursues only one side of a conflict — rarely both. When the court initially intervened in Libya in 2011, it singularly targeted officials from the Gaddafi regime, overlooking or actively ignoring a litany of opposition atrocities.

As a result, many subsequently criticized the court for practicing one-sided justice and entrenching impunity in order to curry favor for anti-Gaddafi forces and U.N. Security Council member-states.

Werfalli, however, fought against regime forces during the 2011 civil war. He thus represents the first nonregime combatant to be targeted by the ICC. Does this mark a turning point in the court’s penchant of pursuing uneven accountability? Not really.

Werfalli’s alleged crimes were perpetrated between June 2016 and July 2017. While the court believes (not uncontroversially) that the current conflict in Libya is a continuation of the 2011 civil war, Werfalli’s crimes have nothing to do with the 2011 uprising or his role in defeating the regime. Without any prosecutions — domestically or internationally — for crimes perpetrated by anti-Gaddafi factions in 2011, the Libyan civil war remains an unfortunate example of victor’s justice. While Werfalli is certainly deserving of being targeted by the court, the warrant for Werfalli’s arrest does little to alleviate that.

Proxy politics, proxy justice?

Complicating matters is the extent to which Libya continues to play host to a number of regional interventions. LNA forces are supported by Saudi Arabia, the United Arab Emirates, Bahrain and Egypt. Qatar is widely viewed as supporting Islamist factions (and for some, terrorist groups) fighting against the LNA, a fact that led the aforementioned states and Haftar to cut off diplomatic ties with Doha.

None of these states are known for their interest in international criminal justice (although Egypt has periodically said it would join the ICC). Still, in early July, Bensouda traveled to Qatar. Despite the court later insisting that Bensouda had been on a “private visit,” the prosecutor met with a number of high-level officials, including the Qatari emir. This occurred at a remarkably sensitive time for the country and for the court. The visit came just a month after Libya’s LNA had made a push to have Qatar investigated by the ICC, and just three weeks before the warrant of arrest for Werfalli was requested.

The ICC is regularly pilloried for leaving itself vulnerable to political manipulation by states. Irrespective of whether Bensouda’s visit to Qatar had anything to do with her office’s investigations in Libya or the desire of the LNA for Qatar to be investigated, recent events have left the court susceptible to criticisms that it may be seeking politicized justice in the midst of a broader proxy war.

Will Werfalli ever end up facing judges in The Hague?

Whether Werfalli is surrendered to the ICC will depend, above all, on the situation on the ground in Libya. If the increasingly opportunistic court has gambled correctly, Werfalli will find himself in The Hague soon. But where the ICC shouldn’t expect much support is from the broader international community. In a joint statement, France, the United Kingdom and the United States “welcomed” the LNA’s decision to “suspend al-Werfalli pending an investigation.” No mention was made of the 2011 referral of Libya to the ICC by the U.N. Security Council, where all three sit as permanent members, or the ongoing legal obligation of Libyan authorities to cooperate with the court.

This represents a continuation of the general attitude of the international community to justice and accountability in Libya, one which has fostered a culture of impunity for human rights violations. The ICC, over six years later, still awaits its first Libyan suspect.


Mark Kersten is the deputy director of the Wayamo Foundation, a fellow at the Munk School of Global Affairs at the University of Toronto and the creator of the blog, Justice in Conflict.



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