Libyan Commander, Wanted by the ICC, is Released the Day After His Surrender

Libyan army commander Mahmoud al-Werfalli, who is wanted by the International Criminal Court (ICC), was freed one day after reports of his alleged surrender to military police of the Libyan National Army (LNA) in eastern Libya. On February 8, a spokesperson from the LNA said in a television interview that the military police had released al-Werfalli on bail, adding that the LNA is not considering handing him over to the ICC at all.

Al-Werfalli is a commander of the Al-Saiqa Brigade, a unit attached to the LNA that controls large parts of eastern Libya. He came into the spotlight after the ICC issued a warrant for his arrest in August 2017. The warrant accuses him of a having a direct role in or ordering the summary executions of 33 people between June 2016 and July 2017. The same month, the LNA said it had detained al-Werfalli and was investigating him. However, in September last year, the ICC said it had received subsequent reports that al-Werfalli was still at large and involved in additional killings.

On January 24, 2018, al-Werfalli appeared in a video showing him personally executing alleged terrorists one day after two car bombings in Benghazi. On February 6, the United Nations Support Mission in Libya (UNSMIL) tweeted that it was “alarmed by reports of brutal and outrageous summary executions” and demanded that al-Werfalli be immediately handed over to the ICC.

Since then a man resembling al-Werfalli appeared in another video posted on social media, saying that he will surrender himself to the military police “following orders” from General Command “to complete the ICC investigation.” The news of his surrender to military police in the eastern city of Al-Marj came on February 7. However, the next day, a military source cited by Reuters confirmed al-Werfalli’s release saying that he had returned to Benghazi overnight “after the completion of investigative procedures concerning the case of the International Criminal Court.”

The news about al-Werfalli’s release followed demonstrations by his supporters, some of whom held signs saying, “We are all Major Mahmoud al-Werfalli.” Another source pointed that his release was to avoid internal fighting within the LNA after one commander threatened to bring down the whole General Command if al-Werfalli was not freed.

The LNA official response to the ICC arrest warrant last year did not reject or challenge the decision. On the contrary, the LNA General Command expressed their readiness to cooperate with the ICC in the investigation. The LNA also issued a separate statement to its subordinates, confirming its commitment to investigate alleged crimes and violations on March 20, 2017.

Libya is not a state party to the Rome Statute, the founding treaty of the ICC. On February 26, 2011, the United Nations Security Council unanimously passed Resolution 1970 referring the situation in Libya to the ICC. This established the right of the ICC to exercise jurisdiction over crimes listed in the Rome Statute committed on the territory of Libya or by its nationals from February 15, 2011 onwards. In addition to the al-Werfalli case, two other individuals have outstanding arrest warrants.  Saif Al-Islam Gaddafi is charged with two counts of crimes against humanity allegedly committed during the uprising of early 2011. Al-Tuhamy Mohamed Khalid is charged with four counts of crimes against humanity also allegedly committed during the Libyan uprising in 2011.

No official statement from the ICC has been issued on the al-Werfalli surrender or release to-date.

Mohamed Osman is an Aryeh Neier Fellow at the Open Society Justice Initiative. He holds a LL.B and Postgraduate Diploma on Human Rights from the University of Khartoum as well as a LL.M on International Human Rights and Humanitarian Law from University of Essex (2015-2016). His thesis focused on the application of rule of law by armed opposition groups in their controlled territories.

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