TRIPOLI, (Reuters) – Putting the son of fallen leader Muammar Gaddafi on trial on their own soil is a matter of national pride for Libya’s leaders, but the lack of a properly functioning state is making it hard for them to convince the outside world they are up to the task.
Libya is standing firm on trying Saif al-Islam Gaddafi, once the heir apparent to his father’s one-man rule. But so is the International Criminal Court (ICC) at The Hague, which indicted him in June for crimes against humanity stemming from the crackdown on last year’s revolt.
On Monday Libya will outline to ICC judges in the Hague how it intends to try Saif al-Islam. If the court concludes that Libya cannot or will not try him, and is not cooperating with its own case, it can refer Tripoli to the U.N. Security Council.
Pressure is mounting on Tripoli to hand Saif al-Islam to the ICC as human rights groups question whether its justice system can meet the standards of international law. Libya has filed several appeals, requesting more time to make the case that it can try Saif-al Islam itself.
Five months after he was captured far away in the Sahara desert dressed as a Bedouin tribesman, Saif al-Islam remains in the mountain town of Zintan in the hands of militia fighters who captured him, ostensibly to keep him from harm until Libya’s new rulers can organize a trial.
But the ad hoc nature of his detention and the national authorities’ failure to take custody of him highlight just how little control the interim government, already busy managing the tough post-war transition to democracy, has over the country.
In essence, the tug-of-war over where Saif al-Islam will stand trial is an argument about whether Libya, eight months after it overthrew his father, has the attributes of a functioning state, including a proper justice system.
His captors say it is up to them, not Tripoli, to decide when to give him up.
“It’s not known when he will be moved to Tripoli, it is our decision,” a source close to his captors said. “We’re waiting for when it will be calm and that’s not certain now.”
The ruling National Transitional Council has little recourse. Last week, it sent a delegation to negotiate with the Zintanis, who officials say have demanded financial compensation for their efforts. The delegation returned empty handed.
During a visit to Tripoli last week, ICC chief prosecutor Luis Moreno-Ocampo said Libyan authorities had told him they were building their case against Saif al-Islam, gathering witnesses, documents and interceptions.
Ahmed al-Jehani, the Libyan lawyer in charge of the Saif al-Islam case and who liaises between the government and the ICC, said his team was working “day and night” to prepare its case.
“The most important thing for the (ICC) judges is that they see a good intention to try people who have committed crimes, and not to cover up their crimes,” he said.
“Our preparations for April 30th are very good,” he said, referring to Monday’s presentation to the judges.
But as it tries to make its case, the government has its own problems of infighting to deal with. Rumors abounded this month over NTC members calling for a government reshuffle two months before Libya’s first free polls. The reshuffle was later denied.
Libya has the right to try Saif al-Islam on its soil – if it can. The ICC acts only if a country is deemed unable or unwilling to investigate or prosecute, for instance when its legal system has collapsed.
Human rights groups and his family – surviving siblings who found refuge abroad – say they doubt he will be given a fair trial at home. He faces the death penalty if found guilty by a Libyan court, a prison term if convicted by the ICC.
In a country where hundreds of war prisoners remain in detention without knowing their fate, and where allegations of torture by the militias guarding them have surfaced, Libyan authorities will have to prove their capabilities.
“They hired foreign lawyers to work on the case but that’s not enough, they need a justice system that works,” Marek Marczynski, head of the international justice team at Amnesty International, said.
To advise it on how to build the capacity of the Libyan justice system and to represent it at the ICC on Monday, Libya has hired three international jurists, including Canadian human rights lawyer Payam Akhavan who was the first legal advisor to the prosecutor’s office of the International Criminal Tribunals for former Yugoslavia and Rwanda.
Marczynski said ICC judges will base their decision on Libya’s willingness to try Saif al-Islam on how it investigates other crimes: “The question is whether the justice system in Libya is addressing it. That’s how you check the willingness.”
In an example likely to raise concerns about instability, several blasts targeted a courthouse in the eastern city of Benghazi on Friday, a day after a militia group attacked a prison there in an attempt to release one of its members.
Fred Abrahams of New York-based Human Rights Watch said he believed Libya would follow proper legal procedures, but added security surrounding the case was an issue.
“Can a judge in Libya today make a ruling in Saif’s favor without coming under a threat or a risk or facing possible repercussions? What about his defense lawyer? Can this person come to Libya or be safe outside Libya? The emotions and the weapons can potentially put this person in danger,” he said.
REALITY OF POST-WAR CHAOS
Holding a trial in a post-war nation is a tough task. When Iraq’s Saddam Hussein was on trial, three defense lawyers were killed and a chief judge quit over political interference.
“What about witnesses? In any fair trial Saif al-Islam wants to have someone on his defense. Will this witness be able to speak openly and feel safe?” Abrahams said. “After dictatorships and bloodshed, fair trials are hard to guarantee. It’s the reality of the post-war chaos.”
Jehani said Libya would provide security for those who worked on the case.
“Any Libyan lawyer who feels he is in danger by taking Saif’s case then he has the right to refuse,” he said. “If all Libyan lawyers refuse then he can have a foreign lawyer, that way he will be safe after he leaves the country.”
Kept in a secret location somewhere among the sandstone and concrete buildings of Zintan, Saif al-Islam awaits his fate.
According to an ICC document cited by several international media outlets, an ICC delegation visited him in Zintan on March 3.
“I hope I can be tried here in my country, whether they will execute me or not,” Saif al-Islam was quoted as telling two ICC officials in the March 5 report from the court’s registry.
But the report said it appeared he “was playing the part for the benefit of the (Libyan) prosecutor,” whose representative was present in the meeting.
“It is important to note that for the registry representative, it was clear that (Saif al-Islam) was not able to reply to the questions in the presence of the Libyan prosecution representative,” the report said.
The only chance the registry official had to speak with Saif al-Islam directly was when the Libyan prosecution official went outside for a few minutes and he was asked whether he had been mistreated, according to the document quoted by media.
“His attitude changed from relaxed to intense and without saying a word he waved the hand where two fingers were missing and pointed to a missing tooth in the upper front of (his mouth)”, the report said, referring to a hand injury which Saif al-Islam has said he sustained in a NATO airstrike.
Earlier this month a senior defense lawyer at the ICC said Saif al-Islam had been physically attacked and was suffering dental pain. Libya has denied this.
As the ICC and Libya lock horns over who will try him, many may worry about his potentially embarrassing repository of secrets about his father’s government’s dealings with the West.
Preparations for the trial continue. Authorities this month showcased a freshly painted courtroom. But as long as the suspect is in the hands of the Zintanis, the central government has no defendant. There has even been talk from Zintan that they could hold a trial in their town of 35,000 people.
The Zintanis played an outsized role in the revolt that toppled Gaddafi’s government and have since hung on to influence in Tripoli. They may be holding onto Saif al-Islam as a bargaining chip in the struggle for power.
“Zintan feels that it can’t lose a key prize – what will they have to fall back on?” a diplomatic source said. “The handover doesn’t seem something easy – let alone a trial.”