01.18.13

Justice for Gaddafi Heir? ICC Fears Saif al-Islam Trial Won’t Be Fair

The first court appearance of Saif al-Islam Gaddafi has only deepened international worries that his trial—and those of other former regime officials—won’t be a fair one. Jamie Dettmer reports.

Libya’s new rulers have triggered new international alarm over the upcoming trial of Muammar Gaddafi’s son, bundling him unannounced into a secret hearing Thursday for his first court appearance since his capture 14 months ago.

The move came just six days after the International Criminal Court pressed Libya again to detail its plans for mounting impartial trials of Saif al-Islam Gaddafi and former intelligence chief Abdullah al-Senussi, both of whom are wanted by the ICC on international warrants for crimes against humanity.

The ICC’s demand for information came after public statements from senior Libyan officials over the past few weeks that the two trials could commence next month. The officials now say they won’t begin until May.

Thursday’s brief court hearing in the hardscrabble mountain town of Zintan appears to be the Libyans’ response to the ICC. Additional charges were filed against Gaddafi and formal accusations in absentia leveled against an ICC lawyer and a translator for their involvement in an alleged conspiracy over the summer to help Gaddafi flee his jail in Zintan.

During a June visit to the town, where Gaddafi has been held since his capture in the Sahara in November 2011, ICC defense lawyer Melinda Taylor and her Lebanese translator, Helene Assaf, were detained by Zintani militiamen. The two were accused of spying and passing coded escape plans to Gaddafi, allegations that both women vehemently denied and ICC chief rejected. Taylor, Assaf, and two other colleagues were released after 25 days’ confinement following a diplomatic rumpus.

Taylor had clashed with Libyan leaders before her arrest, when she argued that Gaddafi could not receive a trial in Libya that would meet international standards of credibility. Since her release, the lawyer has cited her arrest as proof that Gaddafi will not get a fair trial and has suggested he be tried in The Hague.

On Thursday, the Libyan public prosecutor’s office announced that Gaddafi had appeared briefly in court in Zintan, two hours’ drive from the capital, Tripoli. There, officials added new charges related to the Taylor visit to his previous war crimes charges.

“He is charged with involvement with the ICC delegation that is accused of carrying papers and other things related to the security of the Libyan state,” said Taha Baara, a spokesman for the prosecutor, in a press statement. Those charges include allegedly attempting to escape prison and insulting post-Gaddafi Libya’s new flag.

The ICC has issued no formal statement about Thursday’s events. But Senussi’s defense attorney, British human-rights lawyer Ben Emmerson, lashed out, saying, “This is yet another disgraceful attempt by Libya to manipulate and intimidate the ICC.”

Privately, ICC chiefs agree with that sentiment, a source in The Hague told The Daily Beast. “There’s a mixture of dismay and disbelief here, although little surprise,” the source said. “There’s going to be a collision over this eventually, but at the moment we want to try to dampen down things to see if we can persuade Tripoli that Saif needs to be prosecuted in The Hague—that is, if the new Libya is eager to present a picture of fairness and distance itself from the kind of injustice of the Gaddafi years.”

“Saif needs to be prosecuted in The Hague—that is, if the new Libya is eager to present a picture of fairness and distance itself from the kind of injustice of the Gaddafi years.”

Debate over where Gaddafi and other former high-ranking officials should be tried raged even before the regime had been ousted. In June 2011, the ICC indicted Gaddafi, along with Senussi, who had fled to Mauritania, for war crimes for their alleged roles in trying to curb the Libyan uprising. The ICC has been locked in a dispute with Libya’s new authorities ever since.

Lawyers at The Hague have expressed concern about Gaddafi’s isolation and the obstacles preventing ICC lawyers and human-rights organizations from visiting him. Human Rights Watch has been permitted two visits. All press requests to interview Gaddafi have been rejected.

International justice experts working in Tripoli worry that Libyan authorities haven’t worked out criteria for deciding who should stand trial to answer for crimes during the Gaddafi era and who shouldn’t. And they argue that the country hasn’t developed the ability to mount trials that meet international legal standards.

They fear prosecutions will turn into show trials, failing to mollify Gaddafi-era victims while also falling short of persuading the families of the accused that they have been treated fairly. Former U.N. diplomat Omar Bakhet, who has been advising Libyan leaders on strategies for post-uprising reconciliation, said he worries that “trials could lay the seeds for future conflict.”

And the longest-serving Gaddafi-era political prisoner, Ahmed Al-Zubair al-Senussi, who was released in 2001 after spending four years longer in prison than South Africa’s Nelson Mandela, said he worries that post-Gaddafi Libya is tainting itself by engaging in rough justice. Libya should hand Gaddafi over to the ICC, he said.

But he’s one of the few prominent Libyan politicians arguing for such a course. In interviews with The Daily Beast over the past few months, most top politicians— including Mahmoud Jibril, leader of the moderate coalition that won the majority of party seats in July’s elections—insisted that Muammar Gaddafi’s onetime heir-apparent must be prosecuted in Libya.

The ICC is a court of last resort, they said, and is only mandated to take cases from countries that are unable or unwilling to prosecute war criminals. They are both willing and able, they said.

Human-rights lawyer Emmerson disputed that argument. He said Libya is in violation of U.N. Security Council resolution 1970, passed in February 2011, that condemned “the gross and systematic violation of human rights” by the Gaddafi regime during the uprising and referred “the situation to the International Criminal Court.”

The standoff between Tripoli and The Hague has been complicated further by the refusal of Zintan, which boasts one of the country’s two most powerful militias, to hand over Gaddafi to the central Libyan authorities. Not only do the town’s militiamen insist that he be tried in Libya, they say any such trial must be in Zintan.