Libya’s Disaster of Justice: The Case of Saif al-Islam Gaddafi Reveals a Country in Chaos

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Ammar El-Darwish / AP

In this Saturday, Nov. 19, 2011 file photo, Seif al-Islam, the son of Libya's slaid dictator Moammar Gadhafi, is seen after his capture in the custody of revolutionary fighters in Zintan, Libya.

When NATO launched its bombing campaign in 2011 against Muammar Gaddafi’s forces in Libya, the Western and Arab leaders who pushed for military intervention vowed to bring to justice the men who had conducted wartime atrocities against civilians—the main motivation for the military intervention in the first place. Yet two years on, as the legal battle over how to try the worst offenders of the Gaddafi regime drags on, some fear that the effort might have damaged the reputation of the International Criminal Court (ICC), potentially impacting its ability to pursue cases elsewhere. “It is hurting it,” John Jones, Saif’s British lawyer, told TIME this week from London. “It makes the ICC look spineless and toothless.”

For months, prosecutors at the ICC in The Hague have fought a bitter battle to have Libyan officials transfer two high-profile defendants to the Hague, where they are wanted on war crimes: Gaddafi’s once hugely powerful son Saif al-Islam, and Gaddafi’s former intelligence chief Abdullah al-Senoussi. The ICC indicted both men (as well as the slain Gaddafi) back in May 2011, at the height of NATO’s bombing campaign, on charges that they ordered security forces to shoot unarmed protesters during the first two weeks of the uprising, before the opposition took up arms. ICC jurists argue that since the U.N. Security Council had ordered the ICC investigation in the first place, each U.N. member (Libya included) is duty-bound to abide by the arrest warrant, and ship the two to The Hague for trial. Yet despite that, neither man seems like to appear in the Dutch city any time soon, and if Libya’s new government has its way, they never will.

(MORE: From Fighting Gaddafi to Fighting Sexual Assault)

The latest round in the legal tug of war came on June 24, when Libya’s government lodged a final appeal to the ICC, arguing in a 98-page document that they were capable of putting the two men on trial in Libya—trials that almost all Libyans fervently want to see on their home turf. On May 31, ICC prosecutors ruled that Libya was incapable of arranging fair trials for Saif and Senoussi, saying that they were “not persuaded that the Libyan authorities have the capacity to obtain the necessary testimony.” Libyan officials said they intended trying both men in Libya in August.

The most intensely fought battle is over the custody of Saif. At 40, Gaddafi’s Western-educated son is by far the highest-profile family member left alive, and the only one who remained in Libya after his father’s 42-year dictatorship collapsed. Since militia fighters from Zintan cornered him in Libya’s southern desert in November 2011 and flew him home as the ultimate war trophy, he has languished in custody in that city, about 110 miles southwest of the capital Tripoli. That puts him out of reach of Libya’s central government, and even further out of reach from the ICC. When the ICC sent a court-appointed defense lawyer, Melinda Taylor, to visit Saif a year ago, the militia arrested her midway through her meeting with him, and held her for nearly a month, on suspicion of conspiring against the state; Saif has not seen a defense lawyer since. Senoussi has also not seen a lawyer since being jailed nine months ago, according to Human Rights Watch, which visited him in prison in Tripoli in April. In April, the Gaddafi siblings who survived the war and are now mostly exiled in Oman, hired Jones, a London lawyer, to represent their brother. But Jones says that task is all but impossible at the moment, since he fears he too will be arrested if he travels to Zintan to meet his client. “There is no way to visit him in Libya,” he told TIME. “It is chaos on the ground.”

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Indeed, nearly two years after the Gaddafis fled Tripoli, the country is racked by spiraling violence and in some parts an all-out insurgency. The government in Tripoli has only a tenuous hold over huge swaths of the country, where armed brigades impose their own law and order, wage battle against challengers, and imprison hundreds of suspected Gaddafi loyalists and other foes. Just in recent days, armed groups assassinated a military intelligence colonel in Benghazi, exploded three car bombs in Sebha, and fought pitched battles in the Tripoli neighborhood of Abu Selim. Armed groups earlier this month assassinated a high-level judge in the eastern city of Derna, and in Tripoli, laid siege to government ministries and to the Petroleum Facilities Guard, which is charged with securing Libya’s crucial oil fields. “We have been told by the government officials that they will rein in the brigades,” Sadat Elbadri, who heads the Tripoli Local Council, told the Libya Herald on Thursday. “I hope it is done this time.”

It will not be easy, as the wrangle over Saif’s custody shows. Since 2011, officials in Tripoli have sworn (including in interviews with TIME) that they were about to take custody of Saif, even constructing a special holding facility for him in the capital. Yet the transfer has not occurred, since the Zintan militia is loath to surrender him. That was one of the major reasons why the ICC last month ruled that Libya could not try Saif in the country.

Rather than admit that they cannot force Zintan’s militia to hand over Saif, Libyan officials argued on Monday that it did not matter that Saif was in Zintan—apparently concluding that the government was unlikely to ever win his transfer to Tripoli. “There is no legal impediment to his trial being conducted in Zintan should the Libyan authorities decide to pursue this route,” the government said in its appeal in the Hague. Senoussi is detained in Tripoli after being arrested on the run in Mauritania and extradited home last September.

In reality, ICC officials are left with little power to fight Libya’s plans, since they have few practical means to enforce their ruling. And with no sign of Libya bending to the international court, Jones fears that Libya intends to rush through trials. “They just want a show trial, to execute him and be done with it,” he says of the government’s plan to put Saif on trial in August. “It shows complete disregard for the ICC. Libya is obliged to deliver him to the Hague.”

But the Libyans’ legal tussle with the Hague could have an effect far beyond the Mediterranean. Libyan officials are not alone in shrugging off the ICC. In Kenya, Uhuru Kenyatta won the presidential elections last March, despite the fact that the ICC had indicted him two years earlier for helping to organize murder and “rape and other forms of sexual violence” of political opponents during the brutal crackdown after the 2007 elections, according to the indictment. In fact, the charges against Kenyatta have limited his role internationally, but only by a little. Prime Minister David Cameron made sure he did not meet with him last month during Kenyatta’s visit to London, where he attended a conference on Somalia, and President Obama sidestepped Kenya, his father’s homeland, on his trip to Africa this week. Even so, he met Foreign Secretary William Hague in London, and hardly seems afraid of being arrested; this week he flew to Uganda for a three-day state visit.

(MORE: Kenya’s Election: What Uhuru Kenyatta’s Victory Means for Africa)

As a measure of how difficult it might be for the ICC to put Kenyatta on trial, now that he is president, the court postponed their prosecution from July to November, while they consider how to transfer a sitting head of state to the Hague. Prosecutors could find it especially difficult calling witnesses to testify against him. “It’s one thing to give evidence against a politician, and another thing to give evidence against the president of your country,” the UN’s Special Rapporteur on the Rights and Freedom of Peaceful Assembly Maina Kiai, who is a Kenyan, said in a U.S. radio interview last month. “There is a rational fear.”

The ICC has had no better luck with their charges against Sudan’s President Omar Bashir, whom they indicted in 2008 for genocide in the Darfur War. Five years on, the ICC has failed to persuade African countries to help in transferring Bashir to the Dutch capital for trial. And in fact, some African countries have made it clear that they don’t intend to cooperate. The Sudanese leader has traveled to Chad four times, seemingly unconcerned despite the fact that Chadian officials are legally obligated to arrest him on arrival, since that country is a signatory to the 2002 international treaty that established the ICC. When Bashir flew to Chad last month, Amnesty International pleaded for his arrest. Their words fell on deaf ears.

But it’s the charges against Libya’s ousted officials that could truly test the ICC, by underscoring the major shortcoming of its indictments and its inability to stand down resistance from governments. For Libyans, Saif’s trial is the ultimate test, too, of the government’s ability to rule, and to deliver one concrete sign of their victory over the Gaddafis. Libyan Prime Minister Ali Zeidan insisted earlier this month that Saif and Senoussi would “receive a fair trial.” Just not in The Hague.

MORE: Muammar Gaddafi’s Daughter Thrown Out of Algeria After Starting Fires in Safe House

17 comments
dori1mega9
dori1mega9

@vivwalt @TIMEWorld There is no established anything in Libya now,just militias & tribal conflict.Gaddafi had direct democracy &more

Zencali
Zencali

@amoelcordero INDEFINITE detention is playground of UNFAIR GOVERNMENT -- that's why Gitmo & NSA etc are so hated by real ACTIVISTS for FAIR

WilfTarquin
WilfTarquin

The ICC is only as strong as the backing it gets from governments. The US refuses to recognize the ICC, which of course sets a precedent for the rest of the world: if the US doesn't hand over war criminals, why should they?

For Libya, handing over Saif would mean giving him a platform to speak to Gaddafi's supporters, and due to the difficulty of obtaining evidence and that he's almost certainly been tortured while in custody the court could well release him - and suddenly the fledgling Libyan government would have a dangerous pretender to the throne on the loose, and Gaddafi's surviving supporters a leader.

By contrast, NOT handing him over simply means that they get letters from the ICC a couple of times per year.

If I was the Libyan government, I know which I'd choose.

ZakGariani
ZakGariani

This is not a factual article. It's an opinion column. Everything the author mentions is an incomplete presentation of events and a distortion of the facts. She describes Libya as being in a state of chaos. Yet, I am certain she has never been their to begin with, to make such an allegation. Why should Libya surrender one of its citizens, that it captured, that has been charged with waging mass murder against the population, inciting mass rapes, looting the state treasury, torture and murder of detainees, issuing orders to shoot civilian protestors with live ammunition.....just to name a few charges. All these occurred in Libya, under him and his father, during their reign. The author also intentionally omitted the fact, the defendants lawyer, Miss Taylor, who was detained during her meeting with her client, because she was about to hand him a pen that had a hidden embedded camera and a watch with a GPS transmitter. Why would anybody bring such devices to a prison, not declare them and attempt to pass them on to an inmate ? TIME should real do a better job of reviewing the articles for facts before they publish them and should move this one to the opinion section.

TheJackal
TheJackal

What happened to the 60 Metric tons of Libyan Gold which Hamza Mustafa a UK lawyer originally from Algeria representing Aisha Gaddafi has been trying to sell in Indonesia and Dubai.?

Does that gold still belong to the Libyan people or the Gaddafi, why is Aisha's Gaddafi"sbank details from Tunisia appears in the FCO.

ramzialadin
ramzialadin

Why wasn't the Kenyan President arrested upon his arrival in London! Isn't U.K. a signatory to the ICC treaty? Libya was handed over to AlQaeda on a silver platter, it really doesn't matter whether Saif is tried in Libya or Hague . It might matter for Saif but not for Libya. That country is ruined for a long time to come.

Padmore
Padmore

It would be a dereliction of duty by the ICC if they did not pursue this case. They should not be put off by expediency. 

Duffman
Duffman

Of course they want him in Libya. In Europe they'll give him a slap on wrist sentence served in a 3 star hotel prison, where he'll be feed, given access to cable TV & the Internet. In Libya they'll pull a Mussolini on him and drag his carcass through the streets. What do you think the Libyans prefer? What do you think is a better example to show the other dictators of this world?

ShermanEllen
ShermanEllen

@ZakGariani None of what you are saying is true in any way. Its repeated lies. Justification to act like criminals waiting for oil money and tourists that will never ever come. Hope you will be happy because occupation is coming back. soon at a town near you.

JasonDalton-earls
JasonDalton-earls

@ramzialadin exactly. Before the NATO self-serving"humanitarian"war Libya had a better standard of living than all Africa & Russia just to mention this shows the wealth of  life in Libya compared to many,many other countries. NATO carpet bombed Libya till the infrastructure was back in the stone-age & Haliburton & similar companies have left Libya in rubble. I have 1.5k Libyan friends who near all have informed me of the atrocities still committed on a daily basis by Misrata's& other RAT's militia's. If this was a HUMANITARIAN WAR IN WHICH REGIME CHANGE WAS FORBIDDEN BY THE UN. WHY DID THE UN NOT DO THE "FACT FINDING MISSION"ASKED FOR BY SAIF GADDAFI. WHY HAS THE UN NOT REACTED TO COMPLETE DISREGARD FOR THE ORDERS SUTRROUNDING THE ENFORCEMENT OF A NO FLY ZONE WHEN RUSSIAN SATTALITE TV SHOWED NO PLANES COULD HAVE TAKEN OFF IN  LIBYA ON THE DAYS THAT GADDAFI WAS FALSELY ACCUSED OF THIS AS MEANS OF OVERTHROWING THE LEGITIMATE LIBYAN GOVERNMENT & INSTALLING A PUPPET REGIME THAT HAS AGREED TO PAYING 35% OF OIL EXPORTS FOR PAST & FUTURE PROTECTION FROM NATO. THAT LIBYAN GOVERNMENT OF EX GADDAFI MEMBER'S IE TRAITORS, NATO PAWNS & THE RATS OF AL QAEDA & MERCENARIES CAN'T FORM A WORKING DEMOCRATIC GOVERNMENT. THE CLOSEST WE ON EARTH HAVE EVER HAD OF A WORKING DEMOCRATIC GOVERNMENT WAS GADDAFI''S WORLDIDE SOCIALIST  JAMAHIRIYA

WilfTarquin
WilfTarquin

@Duffman That's what they *should* have done. I don't see why they keep this guy alive, he should have "hanged himself with his belt" in his cell long ago. Possibly they want to use him as a bargaining chip to get back the billions of dollars Gaddafi stole.

GamerOps
GamerOps

@Duffman So you prefer the new liberated Libya which is in Chaos? at least under Gaddafi there was peace let me guess were you jerking off when Gaddafi was killed?  

WilfTarquin
WilfTarquin

@GamerOps@Duffman Isolationists are idiots, but what makes them even worse is that they lie to rationalize their fundamentally blinkered view. No surprise your avatar is Ron Paul.