Detention & Guantanamo

The Coming Wave of War Crime Prosecutions in Libya

By Robert Chesney
Monday, October 24, 2011, 10:58 AM

An interesting story in the Post this weekend draws attention to the fact that about 7,000 detainees currently are held without criminal charge in various locations throughout Libya, and with varying degrees of accountability to the transitional government authorities.  The story quite properly focuses on the conditions of their confinement, noting the allegations of torture and other abuse as well as fledgling efforts to stop such practices.  There is also some discussion of the legality of detention-without-charge itself, however, and by extension some foreshadowing of a coming wave of war crime prosecutions. 

This passage, I think, gets the detention issue just right:

Under international law, fighters in a civil war are supposed to be freed once the conflict ends, unless they have committed crimes such as attacking civilians.

“That means Gaddafi’s soldiers can be held while a determination is made as to whether they committed war crimes or other offenses,” Abrahams said. But if they are detained for an extended period, “they need to be brought before a judge.”

That is, the use of non-criminal detention was lawful while the conflict lasted, and that authority extends into a wind-up period while the new government attempt to sort out who may be subject to prosecution for war crimes.  But note the inherent indeterminacy of how long such a wind-up period might last.  Given the circumstances, it will take quite some time before all these detainees are sorted into groups of those who will face trial and those who must be released. 

More significantly, there is the question of where any such trials ultimately will occur.  Obviously the ICC could play a role here, but it surely will not take on every single Libyan war crime case.  I assume, rather, that we'll see a small number of cases involving senior officials going to the ICC, if any do go there at all, while the bulk of cases will be dealt with by the Libyans themselves.  But in what courts?  Will the cases be tried in the existing Libyan criminal courts?  The story describes these courts as physically and logistically broken.  And then there is the matter of personnel issues involving judges, prosecutors, and defense attorneys, some of whom might be too closely associated with the prior regime.  If the new regime instead decides to pursue prosecutions via special-purpose tribunals, a host of now-familiar issues will arise regarding their legality as war crime tribunals.  In any event, this looks set to be a significant headache for the new regime for some time to come.