Tripoli defies The Hague to say Gaddafi’s son must face justice on home turf
Libya stood firm on Sunday over the trial of Muammar
Gaddafi's son Saif al-Islam, saying its courts could judge him fairly, defying
the International Criminal Court, which says it is its right try him at The
Hague for crimes against humanity.
As news came in of the capture of Gaddafi's feared
intelligence chief, Abdullah al-Senussi, officials said he, too, would be given
a fair trial in Libya.
The ICC has indicted Saif al-Islam for allegedly ordering
the killing of unarmed protesters during the uprising that brought an end to
his father's 42-year rule. It has indicted Senussi on the same charge of crimes
A month after the elder Gaddafi - also indicted by the ICC -
was captured, tormented and killed, Saif al-Islam was caught in the country's
southern desert on Saturday, where he had grown out his beard and donned the
flowing robes of local nomadic tribesmen. Senussi was caught in the same region
a day later.
The government has said it will try Saif al-Islam in Libya,
but with ICC prosecutor Luis Moreno-Ocampo's imminent arrival in the country
bringing Libya's international obligations into focus, ministers insisted their
courts were up to the job.
"The Libyan judicial system is capable of prosecuting
people of Saif's stature," said Libyan interim justice minister Mohammed
al-Alagi. "The important thing is to ensure a fair trial. We have been preparing
for this for months."
Alagi has said he does not want to retain his post in a new
interim government due to be formed this week.
The ICC is only supposed to try cases which nation states
are unwilling or unable to prosecute, and here it is the strength of Libya's
judicial system that is in doubt.
Many observers says that after Gaddafi spent four decades hollowing
out Libya's public institutions, the judiciary can not handle cases as
sensitive and complex as these, least of all in the poisoned atmosphere that
follows a civil war.
"It has no viable judicial system. Any system that
existed was deliberately eradicated over four decades," said Richard
Dicker, international law expert at Human Rights Watch.
Like many countries, Libya does not have the offence of
crimes against humanity on its statute books. In a state that needs to be
rebuilt from the ground up, there are also obvious concerns about security and
the rule of law generally.
A UN Security Council resolution passed in February in
response to the crackdown on protesters imposes a duty on the Libyan
authorities to cooperate with the ICC. The court says that Libya must either
hand over Saif al-Islam or obtain the ICC's permission to hold a trial in
Given the paltry state of Libya's institutions, it is
unlikely that Tripoli can convince the ICC it is capable of holding a trial
that will meet international standards.
To make matters worse for the prime minister designate,
Abdurrahim El-Keib, who is picking an interim cabinet before elections next
year to a constituent assembly, public opinion is strongly in favour of trying
Gaddafi's strongmen in Libya.
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"Of course he should be tried in Libya. It's not just
me who thinks so. All Libyans want him to be tried here," football player
Qais Abdel Nasser, 29, said on Saturday in Benghazi, where the uprising against
Gaddafi began in February.
"I think the ICC will just keep him away from Libyans
and he will have a comfortable life. He'll still be able to communicate with
Gaddafi supporters from inside prison," he added.
Facing such a difficult choice between its international
legal obligation to go through The Hague, which is unlikely to allow a trial in
Libya any time soon, and the political reality, Keib will be under pressure to
find an acceptable compromise.
There are, however, few obvious alternatives to trying
Gaddafi and Senussi at The Hague, which risks angering many Libyans, and
holding a trial in Libya without ICC authorisation, which is likely to upset
the West, violate international law, and provoke accusations of victors'
ICC spokesman Fadi El Abdallah said a third option could be
for the ICC to hold trials in Libya rather than at its Dutch headquarters,
though how that would work in detail was unclear
"It is possible for ICC judges to organise a trial in
the country if deemed appropriate," El Abdallah said.
One potential model for a local trial with international
input might be those held in Iraq under a special tribunal set up during the
U.S. military occupation to try Saddam Hussein and his senior aides and
generals in Baghdad.
Michael Scharf, law professor at Case Western Reserve
University, was an adviser who helped train Iraqi judges for those trials. He
noted that the ICC indictments, a factor not present in Iraq, made for
different choices in Libya, and he said that handing the suspects to The Hague
would make sense.
To seek international assistance for trials in Libya, he
said, the government might find the going hard unless it abolished the death
penalty - unlikely to be a popular move at home - since many international
jurists would steer clear of involvement with a system engaged in capital
And, saying that the Iraqi tribunal was "ruined"
by government interference, notably in the selection of judges, Scharf added:
"It's not clear that the government and the courts in Libya can get that
kind of independence and separation, and that would be a real problem for them.
"The easiest thing for them is just to surrender them
to the international tribunal - they'd get all sorts of kudos, the
international community would applaud them for doing so and then if they want
they could have trials of people at a lower level."