Al-Senussi Indicted in Mauritania

by Kevin Jon Heller

So reports ABC News (and multiple other news outlets):

The man who ran Libya’s extensive spy network and was considered one of the closest confidants of ex-leader Moammar Gadhafi was indicted in Mauritania on Monday and transferred to a public jail, according to a justice official.

Abdullah al-Senoussi, Libya’s former head of intelligence, is wanted by the International Criminal Court, as well as by France and Libya for crimes allegedly committed during his time at Gadhafi’s side.

The judge in Mauritania is indicting al-Senoussi on a technicality, after the ex-spy chief tried to enter Mauritania disguised as a Tuareg chieftain, said the official who requested anonymity because he is not authorized to speak to the press.

On the run since the fall of Tripoli last year, al-Senoussi attempted to enter the Nouakchott airport in March on a fake Malian passport, after boarding a flight from Morocco. He attempted to cross the passport control wearing the elaborate headdress and the flowing robes associated with the Tuareg nomads, an ethnic group that was closely allied with Gadhafi and who live in the band of countries including Mali located at the base of the Sahara Desert.

Al-Senussi’s indictment significantly undermines Libya’s admissibility challenge under Article 19 of the Rome Statute.  If Mauritania intends to try al-Senussi itself, Libya cannot satisfy Article 17(3), which deems a state “unable” to prosecute a suspect if it is “unable to obtain the accused.”

The indictment also supports my belief that the ICC should interpret Article 95 of the Rome Statute to require a state to surrender a suspect pending resolution of its admissibility challenge.  As I have pointed out, the ICC has nothing to gain by considering Libya’s admissibility challenge regarding Saif, because Libya has indicated that it has no intention of complying with an adverse decision.  The same problem exists even more acutely in situations in which multiple states challenge admissibility, as permitted by Article 19. It makes no sense for the ICC to risk alienating member-states by resolving competing admissibility challenges when the custodial state will simply refuse to extradite the suspect should the ICC give the other state priority to prosecute.  That is not exactly the situation with al-Senussi, of course, because Mauritania is not a member of the Court and is not obliged by SC Res. 1970 to cooperate with it.  If it were, though, Libya might think twice about its insistence of keeping Saif in custody while it challenged admissibility.  If it won’t surrender a suspect in order to ensure that the ICC can enforce its admissibility decisions, why should any other state?

http://opiniojuris.org/2012/05/22/al-senussi-indicted-in-mauritania/

2 Responses

  1. Incredible and fascinating. Initially I did not think that Mauritania would retain custody of Senussi. I figured they’d reap more political benefits sending him off to the highest political bidder. But a clever commenter at JiC (here) suggested that he believed Mauritania would keep Senussi for years to come – and it looks like they just might. A trial start date for the charges he faces in Mauritania can be any time in the next three years. Meanwhile, we know incredibly little about where he is being held, the conditions he’s being held in, etc. What we do know is that there’s a revolving door of interrogators from various states coming in to Nouakchott to ask Senussi their most pressing questions. The political calculus in Mauritania seems to be in favour of delaying any decision to send Senussi anywhere so that these interrogators can come in and get the slice of intelligence their governments seek. 

  2. I hope the US DOJ has sent someone to get intelligence about the manner in which Al-Libi (linked AlQaeda to Saddam and then recanted) got from CIA hands to Egyptian detention and torture to Libyan prisons where he “hung himself.”http://jurist.org/forum/2009/05/man-who-knew-too-much-convenient.php .  The conversations with Suleiman (former head of Egyptian Intelligence) would be fascinating for Americans to learn about.
    Best,
    Ben

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