The discussion of where Saif al-Islam Gaddafi should be tried for the part he played during the Libyan uprising continues. The potentially unfair trial he will receive if tried by the very people who toppled his father is an important consideration for the ICC. One of the founding principles of the ICC is that it is intended to be a court of last resort. Under the complementarity principle, a case is only admissible by the court if a state with jurisdiction over the case is unwilling or unable genuinely to carry out the investigation or prosecution. A decision to try Gaddafi will have enormous consequences in terms of who will sign up to the Rome Statute in the future, not forgetting the crucial precedent it will set for future cases tried by the international court.
Libya said Tuesday it should be allowed to prosecute one of former dictator Moammar Gadhafi’s sons for crimes against humanity, but his lawyers objected, insisting the late ruler’s son cannot get a fair trial in a nation now run by those who toppled his father.
The diametrically opposed positions came at an International Criminal Court hearing that will go a long way to deciding whether Seif al-Islam Gadhafi will be put on trial in Tripoli or The Hague.
The legal tug-of-war over Seif al-Islam also is a key test for a founding principle of the war crimes tribunal: known as “complementarity,” the principle states that the court can only try suspects from nations unable or unwilling to launch their own prosecutions.
ICC prosecutors charged Seif al-Islam last year with murder and persecution for his alleged involvement in the deadly crackdown on dissent against his father’s four-decade rule.
But months later authorities in Libya arrested Seif al-Islam and said they want to prosecute him. Prosecutors in The Hague now say they are willing to hand the case to authorities in Tripoli.
While prosecutors and judges are both part of the court, they operate independently of one another and judges do not have to follow the prosecutors’ advice.
Where Gadhafi’s son ends up being tried is not only a matter of national importance to Libya’s new rulers. It’s also of huge consequence to Seif al-Islam himself: if he were to be tried and convicted in The Hague, he could face a maximum life sentence, but if a Libyan court were to find him guilty he could face the death penalty.
Libya remains in turmoil almost a year after Gadhafi’s ouster and rival armed militias still pose a serious threat to security in the country. Seif al-Islam is being held by a militia in the town of Zintan.
Libyan lawyer Ahmed al-Jehani, who represented the Libyan government at the court, pledged that Tripoli would give him a fair trial.
It would “be a unique opportunity for national reconciliation for a community that wishes to have justice done at home in Libya,” he said.
Al-Jehani said that a “rush to judgment” by the ICC would “render the principle of complementarity meaningless.”
But one of Seif al-Islam’s court-appointed defense lawyers, Melinda Taylor, said the court should not trust Libya and its fledgling justice system to mount a fair prosecution of the son and one-time heir apparent of the country’s widely reviled former leader.
Taylor was jailed in Libya for more than three weeks earlier this year, after being accused by Libyan authorities of passing confidential documents to her client.
She said she wound up in jail after trusting Libyan assurances her visit was privileged, meaning she would not be arrested.
Taylor warned that if the court also trusts Libyan guarantees and sends the case to Tripoli, Seif al-Islam “stands to lose his life in a completely arbitrary manner that has nothing to do with justice.”
Seif was originally charged alongside his father and the Gadhafi regime’s former intelligence chief Abdullah al-Senoussi in June 2011 with attacking civilian protesters in the early days of the popular uprising against Gadhafi’s rule. The United Nations Security Council had asked the court to launch an investigation amid widespread reports of human rights abuses by the Gadhafi regime as it fought to cling to power.
Judges dropped the case against Moammar Gadhafi in November 2011 after he was captured and killed by rebel fighters. Al-Senoussi fled the country, but was later captured in Mauritania and extradited to Libya.
A decision on where Seif al-Islam will be tried is expected to take weeks or months.
