By Thomas Darnstädt

Spiegel

November 9, 2011

Now that the fighting has ceased in Libya, the lawyers have taken center stage. The International Criminal Court in The Hague and Tripoli's new leaders can't agree on who should put Moammar Gadhafi's son Saif al-Islam on trial -- or even whether the manhunt for the deposed dictator itself can be called off.

Is Moammar Gadhafi really dead? Although his body has apparently been buried, he will continue to live on in international legal terms for some time yet. Ever since rebel forces succeeded in toppling the Gadhafi regime, the question of how international law should deal with the case of the former dictator and his clan has become extremely complicated. The National Transitional Council, which is governing Libya in preparation for a changeover to democratic rule, wants Libyan judges to try people accused of crimes committed under the ousted regime. However, judges at the International Criminal Court in The Hague, to which the United Nations handed over Gadhafi's case in the spring, would rather settle the matter themselves.

At present, prosecutors in The Hague are reluctant even to lift the arrest warrant they issued against Gadhafi, citing a lack of concrete evidence that he is indeed dead.

The Gadhafi case is the largest yet taken on by the ICC since it began operating in 2002. Last week, the court's chief prosecutor, Luis Moreno Ocampo, traveled to New York to notify the UN Security Council that the ICC was "galvanizing efforts" and collecting evidence "on the territory where the alleged crimes took place" in Libya. The goal is to punish the misdeeds carried out by the murderous regime in Tripoli in a desperate attempt to cling to power. Ocampo believes he is close to securing a momentous deal: He is apparently conducting secret negotiations with emissaries of Gadhafi's second son, Saif al-Islam, who went into hiding in late October and is now believed to be in Niger. Ocampo has issued an international arrest warrant against Saif al-Islam for involvement in human rights violations, and the accused himself is allegedly willing to hand himself over to the ICC to stand trial, which would see him moving into the relatively comfortable surroundings of the Scheveningen detention center in the Netherlands.

However, all the court's efforts could now be brought to an abrupt halt, and frustrated prosecutors in The Hague are studying legal commentaries and precedents to determine what they should do if Tripoli throws a spanner in the works. The National Transitional Council has already announced that it intends to put Saif al-Islam on trial itself. Colonel Ahmed Bani, the military spokesman of the interim Libyan government, considers a trial in The Hague a "breach of sovereignty." He wants Saif al-Islam in court in Libya to "suffer the consequences of his actions."

Mohammed al-Alagi, the new Libyan justice minister, is more diplomatic in his choice of words. Although he agrees that the Gadhafi scion should "first" be brought to justice in his home country, he says he is open to discussing the idea of a trial in front of the ICC at a later date. However, since the principle of double jeopardy ensures nobody can be convicted of the same crime twice, "later" effectively means "never."

An International Criminal Case Without Precedence

A state has never before taken a case involving its former government away from international prosecutors. Libya's attempt to do so would therefore be entirely without legal precedent. Nevertheless, international law experts have come to the surprising conclusion that it is theoretically possible -- and could take place soon.

"All it takes is a written challenge from the government in Tripoli to the Court in The Hague," says Claus Kress, an expert in crimes against humanity and a co-author of the criminal procedure guidelines governing The Hague. At least for the time being, the procedure would be as follows: If the NTC can provide sufficient grounds for bringing the Gadhafi case to trial in his home country, it can bring about the immediate suspension of all investigations of Saif al-Islam by Ocampo and his staff. And if the prosecutor wanted to continue nonetheless, he would have to ask for special judicial authority for every further investigative step. This would presumably also include negotiating with wanted individuals.

Kress says the "suspensive effect" of a national admissibility challenge was explicitly included in the ICC's mandate. The Rome Statute on which the ICC is founded contains an agreement by the States Parties that courts in a defendant's home country should have priority over the ICC. Without this "complementarity principle," Kress says, "the majority of countries -- even Germany -- would never have agreed to sign the treaty establishing the International Criminal Court."

A Working Court with Real Judges

The key terms in Kress' statement are "can" and "want". The Libyans must show they are in a position and are willing to genuinely investigate or prosecute Gadhafi's son. According to Kress, they must present credible evidence "that they have already begun investigating the case," which means more than just opening a file. Most importantly, however, the applicants must be able to provide plausible proof that, once he has been arrested, Saif al-Islam could indeed be put in front of a working court with real judges.

That may elicit a sigh of relief in The Hague. It is highly unlikely that the NTC can create a court where none existed before. If that is the case, the ICC's Pre-Trial Chamber, which ultimately would decide on Tripoli's application, could reject it, thereby lifting the temporary halt on the investigation triggered by the filing of the request.

Nevertheless, the ICC won't find the Libyans' demands so easy to cast aside. In 1945 the victorious Allies created the Nuremberg court in Germany, and later lawyers in western Africa created a similar body in Sierra Leone, in both cases within a few months of a devastating war, to deal with human rights violations on an unimaginable scale. Why then shouldn't the Libyan people be given a similar opportunity?

"It's quite possible that the International Criminal Court in The Hague will indicate to Libya a certain timeframe within which its government must set up a court to deal with the case," says Kress. If the new government really wants that, Kress adds, it should start putting together a case against Saif al-Islam "tomorrow morning if possible" -- and begin setting up a proper court to try the case.

That's because it'll simply be too late to challenge the international proceedings if the ICC's chief prosecutor has already completed his investigations and the defendant finds himself in court in front of the international judges.

If the Libyans do manage to pull off their legal coup, it would set a dangerous precedent. After all, if any state that had just witnessed a civil war were permitted to deal with its own murderous past with no more than a crude legal system, the chances would be high the proceedings would be determined by revenge rather than justice. But can the representatives of the Libyan rebels, who only recently fought for their lives against pro-Gadhafi forces, be trusted to treat their enemies fairly and in accordance with all the standards of international human rights?

It's a good question. Kress points out that The Hague's decision on whether to hand over Saif al-Islam's case to the Libyans should not depend on human rights considerations. "The statute does not foresee this," he says. In fact, not even the threat of the death penalty could prevent the ICC from granting Libya priority. The signatories of the Rome Statute explicitly stated that the existence of capital punishment in a particular country should not preclude it from dealing with crimes under international law.

Kress concedes that the legal situation is "irritating," but says it's not that unjust: It's bad enough for people in a given country if their judicial system does not respect all human rights or if it threatens them with the death penalty. But why should the worst criminals of all -- namely those who could face international prosecution -- enjoy the privilege of escaping this injustice altogether? In other words, how many people must you murder in order to gain exclusive access to the humanitarian protection of the ICC?

A Tricky International Legal Situation

If Saif al-Islam succeeds where his father failed -- reaching the safe haven of the International Criminal Court in The Hague -- he could end up further complicating the international legal situation. The Libyans would then follow up their demand for a domestic trial with calls for the ICC to hand over its detainee. However, most European nations refuse to deport people to countries in which they could face the death penalty. The Netherlands, which would, in fact, be responsible for delivering Saif al-Islam to his countrymen, might well feel constrained to refuse to transfer him. The ICC itself, whose statute excludes capital punishment, would also find itself in a quandary.

Of course, it is already in difficulties over Gadhafi senior. Prosecutors in The Hague still have an international arrest warrant out on the former dictator. The relevant chamber is now discussing whether such a warrant can simply be lifted. "It's a tricky problem," says Göttingen-based international law expert Kai Ambos. How do you withdraw an arrest warrant for a man who was apparently killed back in October as the world's media looked on? The court can of course close investigations against suspects who die. But where is the evidence of Gadhafi's death? His body was never identified by DNA-testing carried out by an independent body. There is no utilizable death certificate that the ICC could stick to the last page of the Gadhafi file.

And what may appear to be a purely legal conundrum has now also reached the real world. The lack of a suitable certificate that can be presented in court has spawned rumors that Gadhafi's death can't be proven because he really isn't dead and has merely gone into hiding in a media-savvy way.

In the past, the revolutionary leader repeatedly sowed confusion by having body doubles appear in his place. International legal expert Kai Ambos, who is well acquainted with the Arabic legal scene, believes there is "healthy skepticism among colleagues in the Arab world." In his eyes, the NTC's declaration that Gadhafi was dead proves nothing in Arab eyes.

A Death Certificate is Easy to Produce

This is clearly also seen as a problem in The Hague, as confirmed by an article written for the Cairo daily newspaper Al Ahram by Mohammed al-Zeidy, an Egyptian legal expert at the ICC. "Merely claiming Gadhafi is dead on the news is not sufficient grounds for lifting the arrest warrant," wrote al-Zeidy. He wants the investigation into Moammar Gadhafi to continue. If not, he warns, it would open the door to criminal heads of state around the world "evading justice" by having themselves summarily declared dead in their home countries.

"Anyone who is familiar with Africa knows how easy it is to get a death certificate," Ambos says. Al-Zeidy reports that a Ugandan government almost succeeded in duping the ICC years ago with a false death certificate for a person wanted by the court.

The death of a potentate proves nothing until it is official. "We need verification from an independent body," says Ambos. He says experts from the UN or the court in The Hague should carry out comparisons of DNA samples. This too, however, is complicated, as Gadhafi's body was buried at a secret location in the desert.

As such, the most prominent state criminal that judges in The Hague have ever had in their sights will probably continue to haunt the corridors of the ICC for some time, simply because no-one will dare lift the arrest warrant and send the file for archiving in the basement. After all, this could cause the greatest problems of all if the allegedly dead Gadhafi turned up in person one day and -- just like his son -- begged for the safety of a cell in Scheveningen.

Were that to happen, they would at least need a case number for him.