By Chris Stephen.
Tripoli, 23 October:
Some time in the next days or weeks, three judges with black robes and white bibs sitting . . .[restrict]in a courtroom in The Hague, Netherlands, will make history.
They will rule on whether Libya is able to hold a fair trial for Saif Al-Islam Qaddafi and Abdullah Senussi, Libya’s former intelligence chief.
The decision by the International Criminal Court, whichever way it goes, promises to take international justice into unknown territory.
The ICC indicted the pair for war crimes and crimes against humanity in 2011, along with Saif’s late father, Muammar. The UN has given the ICC primacy in the case.
The judges must make a simple decision – can Libya guarantee it is “able or willing” to hold a fair trial? If not, the ICC will refuse permission for Libya to hold these trials and demand they are sent to The Hague.
First, a bit of history.
The ICC is not a UN court. It was designed by UN officials in the 1990s to replace temporary UN war crimes courts for Cambodia, East Timor, Rwanda, Sierra Leone and former Yugoslavia, the idea being to have a permanent world court.
But the idea was objected to by China, Russia and the United States, three of the five permanent members of the UN’s all-powerful security council.
Instead, the court came into being in 2002 as an independent organisation, controlled by its member states – now 121.
While many of the big powers dislike the court, many smaller nations support it. European Union states see it as an extension of their own justice systems. And new democracies, especially those in Africa and South America, joined as an insurance policy against the return of military juntas.
Although it has no formal connection to the UN, the UN Security Council is free to order the ICC into action. In 2005, the council did just that, regarding alleged crimes in Darfur. Last year it made the same order for Libya.
But Libya’s government says it wants to try Saif, arrested last November, and Senussi, extradited from Mauritania in September, on home soil.
In October, Libya made a formal challenge to the judges.
Despite the name, the “challenge” is something the court expects. It is set up as a court of “last resort” with preference being for states to hold their own trials. But those trials have to be fair. And the decision on whether Libya makes that criterion is judicial, not political — although politics have swirled around it for months.
In January, Libyan justice minister Ali Khalifa Ashur told Reuters the ICC had “accepted” that Libya would try Saif. Within an hour, the ICC denied it.
When ICC officials were allowed to visit Saif, being kept in a secret location in the Jebel Nafusa town of Zintan in March, Xavier-Jean Keita, head of the ICC’s public defence office, complained in court documents that only female staff members were allowed to see him.
In the same documents he wrote that Dr Ahmed Gehani, Libya’s liaison with the ICC, said Saif was not being prosecuted for ICC crimes but for “alleged failure to have licenses for two camels, and cleaning of fish farms”.
In April, Libya launched its formal challenge to the ICC, hiring a top British human rights lawyer, Professor Philippe Sands, to make its case.
That same month, Ashur declared Libya was going ahead with its own trial, then set to be finished by June, before the elections – and before the ICC could decide on the challenge.
In June, with no sign of Saif going on trial, ICC officials made a second visit – and got arrested.
Libya accused Keita’s deputy, Melinda Taylor, of acting improperly when meeting Saif, and she and three colleagues were held for three weeks.
“Melinda Taylor handed over to the accused some documents and papers which compromise the national security of Libya,” said Prime Minister Abdurrahim Al-Kib. “These documents have nothing to do with the ICC mission.”
Keita said in court documents that Taylor had been “tricked” by having a guard described as “illiterate” placed in the room when she handed Saif a statement for him to sign.
“The guard, who is actually Ahmed Amer, a councillor who speaks several languages, was planted in the room to deliberately trick the delegation,” writes Keita in a report to the ICC. “He came into the room and started shouting that the statement was very dangerous, violated Libyan national security.”
Neither side has produced the documents to clear the matter up, but the affair further poisoned relations between Libya and the court, which had already complained that Saif’s isolation amounted to “torture.”
In August, Libya prosecution official Taha Naser Bara told the UK Sunday Telegraph it would hold Saif’s trial in September, again without waiting for an ICC decision.
In September, Libya said it was postponing the trial a third time so that evidence could be gleaned from Senussi, extradited from Mauritania to Tripoli that same month.
At the formal challenge hearing in October, ICC defence lawyers said Libya could not give Saif a fair trial. The court’s prosecution office insisted it could.
But it is with the judges that the decision rests. And they know that if they make the wrong decision, it will be the one they are remembered for, for decades to come.
One problem is that the ICC is new, and has few precedents to rely on. Kenya was refused such a challenge last year, but in different circumstances.
If the ICC decides Libya cannot guarantee fair trials, and Libya holds those trials anyway, the judges will complain to the UN Security Council, which ordered it into action in the first place.
Richard Dicker, head of international justice at Human Rights Watch in New York, argues that such a complaint would hurt Libya. “It would be a severe loss of credibility for the new Libyan government for them to put themselves in breach of a Security Council resolution.”
The Security Council could theoretically decide to punish Libya. It could do nothing. The five permanent members are divided over so many issues they may struggle to agree anything at all.
As with the decision of those three ICC judges, their reaction is impossible to predict.
Chris Stephen is the author of Judgement Day: The Trial of Slobodan Milosevic (Atlantic Monthly Press, New York, 2005)