Amsterdam: International Criminal Court (ICC) judges on Friday rejected Libya’s request to annul the international arrest warrant for the son of the late Muammar Gaddafi and let the country’s new government try him in Tripoli.
In essence, the ICC found the Libyan government is not capable of holding a fair trial for Saif Al Islam by itself, and judges said the country’s new leaders are obliged under international law to hand him over to the court in The Hague, Netherlands.
Whether the government in Tripoli will be willing — or able — to transfer Saif to The Hague are both open questions. He was captured by a militia group as he was trying to flee to neighbouring Niger in the aftermath of Libya’s 2011 civil war.
With no national army or police in place since the fall of Gaddafi’s regime, successive governments have been too weak to secure Saif’s transfer to Tripoli.
Saif is jailed in the town of Zintan, and the Abu Bakr Al Sadek militia group has itself begun trial proceedings against Saif for charges including insulting the new country’s flag and “harming state security.”
Crimes against humanity
The Hague court wants him for alleged crimes against humanity in the murder and persecution of protesters in the uprising that ultimately toppled his father’s regime in 2011. The Libyan government wants him for somewhat similar charges, though judges also said Friday the charges aren’t similar enough to warrant cancelling the international case.
Saif says he is innocent of wrongdoing.
“The Libyan state continues to face substantial difficulties in exercising fully its judicial powers across the entire territory,” presiding judge Silvia Fernandez de Gurmendi said in a written summary of Friday’s decision.
He added that “Libyan authorities have not been able to secure the transfer of [Gaddafi] into state custody and impediments remain to obtain the necessary evidence, and secure legal representation.”
Salah Al Marghani, Libya’s justice minister, commenting on the ICC decision, said the disagreement about where to try Saif amounts to “a conflict between national and international law.” “We don’t know the details of the decision yet,” he said.
According to filings by defence lawyers at the ICC, Saif has said he wants to be tried for alleged war crimes in the Netherlands, not Libya.
“I am not afraid to die, but if you execute me after such a trial, you should just call it murder,” he said.
No death penalty
The Hague court does not have a death penalty.
Although Libya is not a member of the ICC, the case was referred to the court by the UN Security Council.
“Libya has until now operated according to the ICC’s procedures, as the UN Security Council required,” said Richard Dicker, international justice director at Human Rights Watch. He urged the Libyan government to extradite Saif. “By respecting the ICC’s judicial process, the authorities will send an important message about their commitment to the rule of law.”
Gaddafi was killed in Sirte, Libya, in October 2011 by victorious rebel forces. Saif was captured a month later in a southern desert region and later moved to Zintan, in the western coastal mountains.
The rest of Saif’s family, including his mother, his sister, two brothers and others, were granted asylum in Oman in March, moving there from Algeria, where they found refuge during the civil war.