Last Friday night, Saif al-Islam Gaddafi, dressed in the traditional garbs of the Tuaregs, was detained whilst on the run, likely to neighbouring Niger. With the death of his father, Colonel Muammar Gaddafi, Saif al-Islam had become the most wanted man in Libya and one of the most wanted men in the world. Now, bearing injuries from a NATO air raid this past October, he is cowering in some detention facility in Zintan, a few hours outside of Tripoli. So what now for justice in Libya?
Journey to the ICC: Over before it Began?
Just a few weeks ago, Saif al-Islam made international headlines with reports suggesting he was trying to flee Libya and was willing to hand himself over to the International Criminal Court (ICC). In the wake of the nauseating treatment of Colonel Gaddafi following his capture, it only made sense that Saif al-Islam would want to prevent a similarly brutal fate.
What’s more, the ICC chief Prosecutor, Luis Moreno-Ocampo, maintained that the Court had been in contact with Saif’s “intermediaries” to discuss his surrender to the Court in The Hague.
To date, there has been little more than speculation as to whether any of the above actually happened. The conflict in Libya has spewed a lot of hearsay and rumours, reminding us of the all-too-true adage that “in war, truth is the first casualty.”
Indeed, it is interesting that when asked about having spoken to the ICC about potentially surrendering by a Reuters correspondent following his capture, Saif, who had said little to that point, remarked: “It’s all lies. I’ve never been in touch with them.”
Whether or not Saif did get in contact with ICC officials or not, the chances that Saif al-Islam will ever reach an ICC court room are zero-to-none.
There are rumours that the Libyan National Transitional Council (NTC) will hold a vote to decide where Saif al-Islam Gaddafi should be tried. While this would be a sensible and democratic approach, it virtually guarantees that Saif will be tried in Libya.
Observers are right to point out that, under international law and Resolution 1970, Libya has an obligation to arrange the transfer of Saif to The Hague. However, it seems unlikely that much will be made of this obligation amongst international diplomats and leaders.
In this context, the remarks by UK Prime Minister David Cameron were telling, but for what they didn’t say:
“It is a great achievement for the Libyan people and must now become a victory for international justice too…
…Britain will offer every assistance to the Libyan government and the International Criminal Court to bring him to face full accountability and justice for what he has done.
The Libyan government has told us again today that he will receive a trial in line with international standards, and it is important that this happens.”
Cameron neglects any mention of the obligation to bring Saif to the ICC and like other comments on the issue and much of the rhetoric regarding international justice in Libya, suggests that Libyan authorities will be in the drivers’ seat when it comes to deciding Saif’s fate.
What (International) Justice will be served?
Despite protestations by the NTC that Saif al-Islam will get a “fair trial”, there are significant potential dangers to having a trial in Libya. Beyond the fact that there has never been a functioning independent judiciary for at least four decades, it is not clear what domestic legal paradigm could be used in trying Saif al-Islam, nor whether international law would be respected in key regards. It’s not a stretch to say that a large number, perhaps even a majority, of Libyans would prefer Saif al-Islam dead – either immediately or following a trial. For many in Libya, the killing of Colonel Gaddafi in the streets of Sirte was quite clearly “justice”. Little was said to dismiss or challenge that sentiment and it is forseeable that killing other key pro-Gaddafi leaders, including Saif al-Islam, will be conflated with “justice” too.
There certainly is no shortage of Libyans who would like to do Saif al-Islam physical harm. When the plane carrying him to Zintan landed, the scene was startlingly reminiscent of the images we saw when Colonel Gaddafi was paraded – first alive, then dead – by rebels. While Saif was transferred from the plane to an awaiting car, some Libyan rebels couldn’t resist kicking and punching him.
Even if Saif al-Islam is brought to trial, there remains the risk that the “justice” served to Saif will still be his death. As things stand, it seems probable that Saif al-Islam would face the death penalty if convicted for his crimes. To all of those wary of returning to a time where the killing of another person was equated with justice – with or without a trial – this would be a disastrous and unjust end.
Back in August, I outlined my reasons for why the ideal option was for the ICC to hold a trial in Libya for the Tripoli Three. All of these reasons hold true today. Unlike having a trial in either The Hague or Tripoli, an ICC-backed or run trial, based in Libya, would be good for both the ICC and for Libya.
It is unclear to what extent the ICC has considered such an arrangement as a legitimate possibility or whether Luis Moreno-Ocampo will bring some sort of justice-sharing agreement up when he travels to Libya next week. Regardless, it is worth noting that, at the very least, there is nothing in the Court’s Rome Statute which prohibits it from running trials abroad. On the contrary, some of its first proponents recognised the potential of the ICC as a traveling Court in exceptional circumstances and this past summer, the ICC very nearly travelled to Nairobi to hold hearings in the Kenyan case.
Critics would surely suggest that there is simply no political will or the money to have an entire ICC trial in Libya. But even if the ICC does not run the trial, the Court could contribute resources, including the training of lawyers, some funds and perhaps even judges.
With Moreno-Ocampo’s term coming to an end, the ICC’s first ever Prosecutor has the opportunity to put his weight behind an issue that could dramatically improve his legacy. An ICC-backed or run trial in Libya would tell the world that national proceedings could work with the ICC to serve justice, representing something of a new dawn for the Court’s complementarity regime.
UPDATE: the other suspect wanted by the ICC, Libya’s former intelligence chief Abdullah al-Senussi, has been arrested in the south of the country.