Why Libya—and Not The Hague—Will Try Gaddafi’s Son

A hearing at the international court appears to indicate that the ICC and the Libyan government see eye-to-eye on the prosecution. But Saif’s defense cries foul

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Michael Kooren / Reuters

From left: Mohamed Youssef, Xavier-Jean Keita and Melinda Taylor, representatives of the Office of Public Counsel for the Defence, are seen in the International Criminal Court before a public hearing on Libya's challenge to the admissibility of the case against Saif Al-Islam, son of toppled long-time dictator Muammar Gaddafi, in The Hague, Oct. 9, 2012.

With Libyans in political turmoil at home, and still reeling from last month’s Benghazi attack against U.S. diplomats, Libyan officials this week seem nearer to winning at least one key battle, right in the heart of Europe: The right to conduct its own trial of Saif al-Islam Gaddafi rather than surrender him to the International Criminal Court (ICC) in The Hague.

At a two-day hearing at the international court on Tuesday and Wednesday, Libyan officials argued that they were capable of conducting a fair hearing of Muammar Gaddafi’s most famous son—long regarded as his father’s heir apparent—and that their pre-trial investigation was well underway. “There is a wide range of evidence that will constitute an indictment the same as that presented by the ICC’s prosecutor,” said the British barrister Philippe Sands, an international-law specialist representing Libya’s government. Far from arguing against them, the ICC prosecutor’s office agreed with Libya, saying in a statement that the government “is taking the same serious tack,” and that it was “confident that it meets the admissibility standards,” allowing Libya to put Saif on trial at home.

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Those assurances were rejected by the court-appointed defense counsel Melinda Taylor, who told the ICC hearing that Libya might have used coercion and torture togather evidence against Saif, and that it had “provided absolutely noinformation as to how this trial can be conducted in a safe and secure manner, bearing in mind the current level of instability and insecurity in Libya.” Taylor, who works for the ICC’s Office of Public Defence Counsel, saw Saif in jail in April, six months after militia fighters cornered him on the run inLibya’s Sahara Desert and flew him into custody in the western Libyan town of Zintan. There, he has been locked up ever since, shut off from the outside world. When Taylor traveled to Zintan to see her client, militia officials arrested her midway through their meeting, and held her for 26 days—throwing the ICC case into months of disarray.

In an email to TIME on Wednesday afternoon, Taylor said Libya has denied Saif access tomeet with lawyers, regarded as a basic right under international law. “We have not had any ability to contact Mr. Gaddafi and none of his friends and family have been able to contact him,” she wrote.

For Libyans, however, the stakes for Saif’s trial go way beyond legal process. Grappling with the raw wounds from Gaddafi’s 40-year dictatorship, Libyans see Saif’s trial as their one shot at redress, a public airing of past abuses before Libya moves on completely. It would be “a unique opportunity for national reconciliation,” Libyan attorney Ahmed al-Jehani told the ICC on Tuesday.

As the sole member of Gaddafi’s immediate family left alive in Libya, Saif would be asked to account not only for his own actions, but also those of his father, who was killed in a gun battle in Surt last October. Saif had been seen as the West’s great hope for bringing some element of democracy to Libya. But that vanished when he went on Libyan Television in Feb. 2011, vowing to crush the rebels “to the last bullet.” It was his belligerent response to those early protests that seemed to shut the door on all compromise with the rebels, leading the United Nations one month later to authorize NATO’s intervention—the West’s only military intervention in the Arab Spring—which ultimately ended in Gaddafi’s death in a gun battle in Surt last October.

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In a case referred to the ICC from the U.N. Security Council, the international courtindicted Saif in June last year for crimes against humanity, specifically for allegedly ordering Gaddafi’s forces to open fire on peaceful demonstrators in February 2011, in the early days of the revolution before the rebels morphed into an armed rebellion. Also indicted were his slain father and his father’s intelligence chief Abdullah el-Senoussi. Senoussi was extradited to Libya from Mauritania last month, and now sits jailed in Tripoli, where he is awaiting a separate trial. But the trial of Saif would likely be an international sensation, since it would not only expose evidence about Gaddafi’s abuses, but also potentially implicate Western governments, which Saif has told TIME and others cut secret deals with the regime.

ICC prosecutors said on Wednesday that “the court might want more tangible proof” that Libya could hold Saif’s trial itself, adding, “We think it is appropriate to give Libya additional time.” Yet since ICC prosecutors agree with Libyan officials, the tug of war appears over. The ICC is expected to rule on thisweek’s hearing within the next few months.

So where does that leave the international court, whose most high-profile target wasSaif Gaddafi? Looking bad, according to one analyst who tracks the court’s progress. “The case of Libya has not done the ICC any favors,” says Mark Kersten, a Ph.D. candidate at the London School of Economics, who runs a blog on the ICC, Justice in Conflict. He told TIME on Tuesday that the case was problematic from the start, since the U.N. Security Council had referred Saif’s case to the ICC, without offering the court additional funds or support to prosecute it. The only other indictment referred by the U.N. Security Council to the ICC—that against Sudan’s President Omar al-Bashir for the war in Darfur—has similarly gone nowhere.

With few resources, the ICC’s case against Saif languished for months, and ICC officials were unable to negotiate tough conditions with Libya in order to hand over Saif. Then came the arrest last May of Saif’s defense attorney Taylor—a disaster for the ICC’s case. “States may now believe that when pesky ICC staff disrupt their interests or plans, they can simply arrest those staff and ultimately get their way,” Kersten says. “That is a terrible precedent to set.”

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