x Abu Dhabi, UAESaturday 20 January 2018

International court says it controls who will try Qaddafi's son

The cases against Qaddafi regime officials and Libya's obligation to cooperate with the International Criminal Court stem from a United Nations Security Council resolution issued in February.

Amsterdam // While mountain tribesmen hold Muammar Qaddafi's most prominent son captive amid an international tussle over where he will be tried for crimes against humanity, the world's war crimes court still insists it has the final say.

During a visit to Tripoli last week to discuss the case with the new interim government, the International Criminal Court (ICC) lead prosecutor, Luis Moreno-Ocampo, had given the impression that Libya would be allowed to try Saif Al Islam itself.

"The point is that for Libya, and I respect that, it is very important to do the cases in Libya," he said.

"This is a right and I have nothing to say. I'm not competing for the case."

But his remarks seemed so definitive that the court in The Hague, under the guise of correcting erroneous news reports, issued a statement to counter the impression he had created.

The ICC's involvement "and the Libyan obligation to fully cooperate with the Court remains in force", read Wednesday's statement.

The cases against Saif Al Islam and the former regime's intelligence chief, Abdullah Senussi, and Libya's obligation to cooperate with the court stem from the United Nations Security Council's resolution 1970 that was issued in February.

International human-rights groups doubt Libya has the capacity to provide a fair trial.

Libya will have to appeal to the ICC judges if it wants to transfer the case to its own national justice system and if it wants to keep Saif Al Islam in custody rather than hand him over, said the court's spokesman Fadi El Abdallah.

Saif Al Islam, once seen as his father's successor, is being held by the tribal militiamen who captured him in the remote southern desert this month.

They have refused to hand him over to the Libyan authorities until the country has a functioning legal system.

Among the criteria the judges must look at is whether Libya would be "willing and able to genuinely continue an investigation", rather than mount a fake one meant just to shield the suspect from justice, Mr El Abdullah explained.

But this is hardly likely to be so in the case with Saif Al Islam.

Indeed, rights groups fear the opposite - that he has already been found guilty even before being tried.

They are concerned at the implications of letting Libya conduct the trials of Saif Al Islam and Mr Senussi.

Both have been indicted by the ICC for crimes against humanity for their role in attempting to crush the revolution that toppled Qaddafi, who was killed last month after being captured by militiamen.

Confusion surrounds Mr Senussi's fate. Libyan authorities had said he had been captured soon after Saif Al Islam. But the new defence, minister, Osama Al Juwali, said he had found no evidence to support this since being appointed last week.

"The best option would be to surrender [Saif Al Islam] to the ICC. The ICC can provide a fair trial with the backing of the international community and see justice done," said Elizabeth Evenson of the international justice programme of Human Rights Watch.

Ensuring Libya would be capable of conducting the trial would take a long time, she said.

"The judicial system in Libya has been weakened and it will take time, resources and effort to repair it."

Ms Evenson said the failure of the ruling National Transitional Council (NTC) to ensure Muammar Qaddafi was brought to justice was worrying.

His death in custody "raises questions of whether the NTC can provide a fair trial", she said.

The International Federation for Human Rights (FIDH), which is based in Paris, said it would prefer a trial in Libya but that conditions were not conducive at the moment.

"Right now, to show also to Africa and all the world actually that this is not justice for revenge, it may be more compatible to transfer Saif Al Islam to The Hague," said the FIDH's Florent Geel.

"Libya has the death penalty. The ICC does not," he said.

"Libya could declare that they will abolish the death penalty. They have time to organise."

If the trial takes place in Libya, the ICC has several options to help ensure its fairness. It may decide to conduct its proceedings in Libya or form chambers including international judges and Libyans.

Regardless, the most important issue would be that the ICC's procedures were followed meticulously and justice was seen to be done, said Ms Evenson of Human Rights Watch.

Any perception the international community no longer cared about justice for Saif Al Islam could undermine the credibility of the ICC.

"Then you have the danger that the ICC is just being invoked in name only and not with the ultimate aim of delivering justice," she said.

"And that is the ultimate aim of the ICC. It is not just another tool in international relations."