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The prosecutor of the International Criminal Court, ICC, has confirmed to the United Nations Security Council that he has been in contact with aides to Muammar Gaddafi’s son, Saif al-Islam Gaddafi, about his possible surrender to the court. However, no direct contact has yet been made and the younger Gaddafi is thought to be hiding out in the deserts of southern Libya or neighbouring Niger. Simon Jennings, IWPR’s Africa editor, looks at some of challenges involved in bringing the late Muammar Gaddafi’s son to trial.
What could Saif al-Islam Gaddafi be tried for?
He faces charges of crimes against humanity during this year’s uprising in Libya. Following an investigation carried out in the spring, ICC judges believe there are reasonable grounds to believe that he is criminally responsible, as an indirect co-perpetrator of atrocities committed by Libyan security forces under his control.
The arrest warrant accuses Saif al-Islam Gaddafi of acts amounting to murder and persecution in the towns of Benghazi, Misrata, Tripoli and elsewhere between February 15 and 28 this year.
Although he did not hold an official position in his late father’s administration, judges at the court believe he fulfilled the role of prime minister and was Muammar Gaddafi’s “unspoken successor and the most influential person within his inner circle”.
If he was detained and sent to trial, would the case be affected by the death of his father?
While it will not be as easy to pin crimes on Saif al-Islam as it would have been on Muammar Gaddafi, the latter’s death should not stand in the way of a successful prosecution at the ICC. Even if Saif al-Islam was not ultimately responsible for ordering the crimes against the Libyan people, prosecutors would want to show that he was following criminal orders which he had an opportunity to refuse.
Several televised speeches and appeals he made during the conflict could also be used as evidence that he instigated violence and attacks on the ground.
Legal experts say prosecutors will have to show that the crimes in question actually occurred, and that Saif al-Islam made a “substantive contribution” to their commission. The test of proof is having the “mens rea” or “guilty mind” necessary to commit the crimes.
At the heart of the case would be whether Saif al-Islam Gaddafi was involved in hiring mercenaries and either giving or passing on orders that led to crimes against the civilian population.
Might Saif al-Islam be tried by the Libyan authorities, rather than by the ICC?
The National Transitional Council, NTC, is building its own judicial structures which could make a formal request for a trial to take place in Tripoli rather than The Hague. Since the Gaddafi regime has been overthrown and the NTC is seeking to rebuild the country, a strong argument could be made for justice to be delivered locally, in full view of victims of the conflict.
The ICC is a court of last resort and its founding treaty, the Rome Statute, makes it a priority for trials to take place in national courts whenever possible, even when the accused are suspected of the gravest crimes. In order for the ICC to intervene, it must show that a country is either unwilling or unable to put suspects on trial.
Prosecutor Luis Moreno-Ocampo told the UN Security Council last week that if such a request was received in the case of Libya, ICC judges would need to decide what to do.
However, while it would not want to cast a shadow over the NTC and its efforts to rebuild Libya, it seems unlikely that if the ICC had Saif al-Islam Gaddafi in custody, it would willingly hand him over to stand trial in Tripoli. Having him in the dock in The Hague would be a major coup for the court, which has struggled to establish itself in its first nine years of operation and has yet to complete a trial.
President Omar al Bashir of Sudan, suspected of committing genocide in Darfur, has evaded arrest since a warrant was issued in 2009.
Bringing Saif Gaddafi to trial and securing a conviction would be a major statement for the institution.
What if Saif al-Islam doesn’t give himself up to the ICC?
If he doesn’t surrender, he’s likely to seek refuge in a neighbouring country such as Mali or Niger, most likely among one of the region’s tribal, desert-dwelling groups.
Both Mali and Niger are signed up to the ICC, so would be legally obliged to arrest him and transfer him to The Hague. However, as has been the case in Uganda, the Democratic Republic of Congo and several of states that the indicted Omar al Bashir has visited, countries routinely fail to arrest suspects wanted by the ICC.
While several African states lack the capacity to track fugitives, this need not be a barrier to arrest as long as there is the necessary political will. Mali and Niger could even formally ask NATO to intervene and arrest Saif al-Islam if they believe he is on their territory.
With the Libyan regime now successfully overthrown, has the international community failed in its duty to bring the country’s leaders to justice?
Questions have been asked about the failure to keep Muammar Gaddafi alive to face trial after he was captured in Sirte on October 20. The NTC has vowed to bring his killers to justice. But some ask whether the international community could have done more to ensure in advance that if he was captured, he would be safely brought to justice.
The Security Council’s referral of the Libyan conflict to the ICC in March has been the subject of some controversy. In the plan to remove Libyan leaders from power, bringing them to justice did not seem to be the main goal of the world powers.
The ICC referral came almost as an interim measure before the Security Council agreed to establish a no-fly zone and send in NATO bombers. The Security Council never offered to pay any money towards investigating the Libyan case or for any ensuing trials.
Once the NATO mandate was assured a few days after the ICC referral, the court’s investigations took a back seat while the international community debated the lawfulness and extent of NATO’s intervention.
In early March, bringing Muammar Gaddafi and his associates before the ICC appeared to suit the interests of western powers who were desperate to get rid of the regime. However, once other options came to the fore, interest in their arrest and trial faded fast. With a history of failed arrests for those wanted by the ICC and obviously no cooperation from the Libyan regime, direct military attack now looked like the best strategy for eliminating the 42-year dictatorship.
As the balance of power tipped in the NTC’s favour, western states may also have been mindful that a trial might expose some embarrassing revelations about their previous dealings with the Gaddafi regime.
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