Al-Werfalli’s Arrest Warrant: Respect for International Criminal Law need of the hour

On 15th August, 2017, the Pre-Trial Chamber of the International Criminal Court (ICC) headed by Presiding judge Joyce Aluoch and Judges Cuno Tarfusser and Peter Kovacs issued an arrest warrant against Mahmoud Mustafa Busayf Al-Werfalli under Article 58 (1) of the Rome Statute.

Al-Werfalli, a Libyan National born in 1978 belonging to the Al-Sahibani family of the Werfalla Tribe is a commander in the Al-Saiqa Brigade. Al-Werfalli joined the Al-Saiqa Brigade post the collapse of the Gaddafi regime and has been in the Commander’s position since at least December 2015.  Al-Saiqa Brigade is one of the numerous armed groups engaged in a non-international armed conflict in Libya since March 2011. Given the issue of warrant against Al-Werfalli, it can reasonably presumed to be amongst the most deadly as well.

Background

The United Nations Security Council on 26th February, 2011 acting under Chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970 which referred the situation in Libya since 15th February 2011 to the Prosecutor of the Court. The Resolution required all States and concerned regional and international organizations to extend co-operation with the ICC and its Prosecutor. As is well known, Libya was only the second instance of a situation being referred by the UNSC to the ICC, the first being Sudan.

On 1st August, 2017, the Prosecutor submitted an application under Article 58 for a warrant of arrest against Al-Werfalli. In requesting the Chamber to issue an arrest warrant against the said person for War Crimes under the Statute, the Prosecutor specifically cited 7 incidents taking place on or before 3rd June, 2016 to 17th July, 2017 in Benghazi and surrounding areas for which Al-Werfalli could be proceeded against. These crimes according to the Prosecutor were egregious and individual accountability for these crimes would advance the ends of peace and stability.

Opinion of the Pre-Trial Chamber

According to the Chamber, Al-Werfalli appeared to be directly responsible for the killing of 33 persons in or around Benghazi by either personally killing them or ordering their execution. The persons killed were detained and where either plain civilians or persons hors de combat.  The executions which took place in the course of seven incidents, according to the Chamber were exceptionally cruel, dehumanising and degrading. The use of these words by the Chamber reflects the magnitude of the impunity unleashed by Al-Werfalli in the intractable conflict currently underway in Libya.  The Chamber primarily relied upon Video Recordings submitted by the Prosecutor in coming to its conclusion on the need to issue arrest warrants. Shockingly, these videos were posted on social media on 23rd July 2017 and appear to have been uploaded in Benghazi. In addition to Video Records, records of witness interviews was factored as well.

Jurisdiction of the Court

The Chamber was convinced that the material produced (evidence) pertained to the time period for which the ICC was granted jurisdiction to adjudicate on the case (i.e., post 15th February, 2011). Since the Al-Saiqa Brigade was involved in the non-international armed conflict ever since the days of the revolution against the Gaddafi regime, the Chamber had no hesitation in concluding that the alleged crimes are directly and clearly linked with the situation that triggered the jurisdiction of the Court through the Security Council referral.

In addition, the Chamber concluded that there are reasonable grounds to believe that the Al-Saiqa Brigade had a hierarchical structure, with field commanders acting under the overall command of Colonel Bukhmada, along with numerous divisions and battalions. The violence perpetrated by this group was organized and systematic and had risen above the level of isolated and sporadic acts of violence. Given this evidence, the Chamber concluded that there are reasonable grounds to believe that Al-Werfalli’s acts constituted war crimes committed in the context of an armed conflict not of an international character. The fact that Al-Werfalli personally committed some of these murders bolsters the finding that he bears individual criminal responsibility as a direct perpetrator under Article 25 (3) (a) of the Rome Statute.

Importantly, the Chamber also mentioned that the issue of arrest warrant is necessary to prevent Al-Werfalli from further commission of these crimes.  The posting of the dastardly videos on social media satisfied the chamber that Al-Werfalli was unlikely to co-operate with a summons to appear and hence only the issuance of a warrant of arrest would serve the necessary purpose. The finding of the Chamber was based on the statutory standard applicable at this particular stage of the proceedings, namely “reasonable grounds to believe” as required under Article 58 (1) (a).

Conclusion

With the public issue of the arrest warrant, the Chamber has directed the Registrar to prepare a request for co-operation from Member States seeking the arrest and surrender of Mr. Al-Werfalli.  With the PTC issuing the arrest warrant, ICC Prosecutor Fatou Bensouda issued an appeal to the international community to co-operate and assist Libya in ensuring the arrest and surrender of Al-Werfalli to the ICC without delay. A request to this regard was made, importantly, to the UNSC as well.  While the importance of timely and effective co-operation in the enforcement of warrants of arrest cannot be understated, the ball is now in the court of the international community to honour its role in the fight against impunity. Will the international community wake up to Al-Werfalli’s arrest warrant? The execution of the warrant would be a milestone in international criminal justice.

Abraham Joseph

Advisory Board Member

Abraham Joseph is a PhD candidate in International Criminal Law from NLSIU, Bangalore and an Assistant  Professor in Ansal School of Law, Ansal University, Gurugram.

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