August 7th, Abdullah Al Senussi and Libya’s Flexible Approach to Time

By Kevin Jon Heller

On July 10, counsel for Al-Senussi filed a motion with the Pre-Trial Chamber complaining that Libya had announced it would begin Al-Senussi’s trial no later than the end of Ramdan — August 7 — despite the fact that Libya’s admissibility challenge was still pending before the ICC. On August 5, Libya filed its response, arguing that it has no obligation to spend domestic proceedings during consideration of its admissibility challenge.

The problem is not that Al-Senussi’s prosecution is moving forward; there is indeed nothing in the Rome Statute that requires a state to put domestic proceedings on hold while it challenges admissibility. The problem is that Libya has made it all too clear that it has no intention of ever turning Al-Senussi over to the ICC — even if the Appeals Chambers orders it to.

I can’t help but marvel at its rather flexible approach to time. As Libya acknowledges, despite having nearly a month to file its reply, it filed the reply one day late. It’s excuse? Ramadan:

The Government is aware that this Response has been filed one day after the  requisite time limit. The holy month of Ramadan commenced in the Islamic world on 9th of July and will conclude on 7th of August. During this period, hours of work in Libya are dramatically reduced due to the requirements of intense prayer and fasting which the Libyan people (including Libyan Government officials) adhere to. This has complicated the receipt of instructions and finalisation of the filing. The Government accordingly seeks the Court’s indulgence to extend the time limit to today, pursuant to Regulation 35 (2). The Government notes that, given the nature of the Defence Application, the fact of the short delay is unlikely to have caused any prejudice to the Defence.

I don’t in any way want to slight Islam, but really? Libya’s team of three Western lawyers couldn’t write an 11-paragraph motion that contains not a single fact concerning Al-Senussi’s case — the motion focuses solely on what the Rome Statute says about Libya’s obligation to cooperate with the ICC — in a month? Color me skeptical.

Even worse is Libya’s proposed resolution to Al-Senussi’s motion. The reply argues that if Libya is required to provide the ICC with information about the timetable for Al-Senussi’s domestic prosecution, it should be given six weeks to do so. In other words, it should be allowed to wait until five weeks and five days after Al-Senussi’s trial is supposed to begin (according to Libya’s own statements) to discuss when Al-Senussi’s trial is supposed to begin. The reply provides no justification whatsoever for the six-week deadline. Nor does it explain why it needs so long now that Ramadan is over.

With Libya, it’s always “heads Libya wins, tails the defence loses.”