LNA Arrest Al-Werfalli: LFJL calls for his transfer to the ICC

On 18 August 2017, the Libyan National Army (LNA) issued a statement, in which they  confirmed their arrest and investigation of International Criminal Court (ICC) indictee Mahmoud Al-Werfalli. Lawyers for Justice in Libya (LFJL) calls for the LNA to cooperate with the ICC and to surrender Al-Werfalli to The Hague.

On 15 August 2017, the ICC issued a warrant of arrest for Al-Werfalli for murder as a war crime due to his alleged responsibility of the execution of 33 people. As LFJL previously noted, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit of the LNA.

The LNA statement confirmed their arrest and investigation of Al-Werfalli under Libyan Military Law since 2 August 2017. In the statement, the LNA acknowledged their observation of the ICC’s warrant of arrest, commended the ICC’s efforts in bringing peace, and expressed their willingness to cooperate by “sharing trial proceedings”.

LFJL recognises that justice is best delivered as close to the crime as possible and that the ICC is a criminal court of last resort. National proceedings are advantageous in terms of evidence collection and securing witness testimony. They also provide greater opportunities for reconciliation, including the recognition of victims among their fellow citizens and the possibility for the rehabilitation of perpetrators.

The LNA’s statement, however, does not establish whether their investigations are for the same case as the ICC’s arrest warrant. This is an important factor in considering the admissibility of a case before the ICC, as the State’s case for admissibility must establish that their proceedings sufficiently mirror and include the same criminal conduct which form the basis of the ICC’s case.

LFJL is also highly concerned that the LNA or affiliated military tribunals may not have the willingness or capacity to ensure Al-Werfalli’s fair trial. The LNA and the Al-Saiqa Brigade are high profile and highly politicised actors in the ongoing conflict in Libya. As a result, there is a significant risk that actors may seek to intervene unlawfully in such a case to manipulate  the result.  LFJL notes the difficulty the national judicial system has faced in this respect, following many killings, kidnapping and threats of violence against prosecutors, court officials and investigators. High profile proceedings, such as those against Saif Gaddafi, were also widely criticised for failing to adhere to fair trial standards and their hostility towards independent monitoring.

LFJL Transitional Justice Programme Coordinator Laura McDonnell noted, “Justice done badly is bad for everyone. For the defendant, it deprives them of their right to a fair trial and to voice their testimony. For the victims and society, it deprives them of their right to truth and to know what happened. It undermines the dignity of all parties and, ultimately, only serves to deepen divides and reduce the space for reconciliation.”

LFJL notes that if the LNA acts in accordance with the ICC’s warrant of arrest and surrenders to Al-Werfalli to the Hague, it still has the capacity to challenge the ICC’s admissibility and prosecute him nationally. If the ICC finds the case to be inadmissible (as it did in the Al-Senussi case) the Libyan state would then be able to continue with its national investigations unimpeded by the ICC.

McDonnell stated, “If the LNA intends to demonstrate their observation and respect of the ICC arrest warrant, they should immediately surrender Al-Werfalli to The Hague.” McDonnell added, “Any action by the LNA other than Al-Werfalli’s surrender falls short of what is required by international law.” LFJL therefore calls on the LNA to respect UN Security Council Resolution 1970, cooperate fully with the ICC and transfer Al-Werfalli to The Hague.