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.
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.”
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.
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.