Where should Saif al-Islam Gaddafi, son of the late Libyan dictator, be put on trial? The international community would like to see him tried by the ICC in The Hague, but the Libyans want to try him themselves. The pros and cons examined.
The International Criminal Court (ICC) in The Hague, here in the Netherlands, issued an international arrest warrant against Saif al-Islam on suspicion of crimes against humanity. The implication was that Saif, once arrested, would be flown to The Hague to face trial. Tripoli, however, has quite a different take on this. The Libyans say there are four important reasons for putting Saif on trial in his home country:
1. The will of the people
It is the will of the Libyan people that Saif be tried in his fatherland. Most Libyans agree, it seems. Flying Saif to The Hague would be interpreted as a loss of face for the new Libyan rulers. A related argument is that most Libyans want Saif to be executed for his crimes against the Libyan people, a penalty that will not be imposed on him by the ICC, which never sentences people to death.
2. A sign of authority from the Transitional Council
The National Transitional Council, Libya's interim government, is eager to show the world that it is the sovereign authority and is able to organise complex trials. "The Libyan judicial system is capable of prosecuting people of Saif's stature," Libya's interim Justice Minister Mohammed al-Alagi told Reuters. "The important thing is to ensure a fair trial. We have been preparing for this for months."
3. Internal opposition
Libyan leaders are concerned about the possibility of internal opposition if they hand over a Libyan citizen to 'the West', particularly from tribes with close ties to the former Gaddafi regime. The Zintan fighters who arrested Saif on Saturday have said they intend to hold on to him until there is a functioning legal system in Libya.
4. Saif al-Islam as a 'hero'
Libyans are worried that Saif could take on some kind of hero status if he appears before the International Criminal Court in The Hague. The fear is that, with the world's cameras on him, he might turn into a photogenic Arab role model or Islamic hero. "I think the ICC will just keep him away from Libyans and he will have a comfortable life. He'll still be able to communicate with Gaddafi supporters from inside prison," Libyan footballer Qais Abdel Nasser told Reuters.
This is how many Libyans see the situation, but what is the international community's position on Saif's trial? The following sets out four arguments in favour of his facing trial before the ICC in The Hague.
1. UN Security Council resolution 1970
In February 2011 the UN Security Council adopted a resolution effectively ordering Libya to cooperate with the ICC. Accordingly, if the court asks for Saif's transfer, Libya will have to hand him over. Dutch lawyer and international criminal law specialist Geert-Jan Knoops recalls that "at the time, the Transitional Council applauded that UN resolution. So, you'd expect them to hand him over to the ICC."
2. Libya's court system can't handle the case
The International Criminal Court is there to handle trials when individual states are unable or unwilling to do so. That Libya is willing is beyond doubt, but the opinion is that it is not able to do so. Four decades under the Gaddafi regime have left all the country's public institutions emasculated and the legal system unable to handle sensitive and complex cases like this one. Lawyer Knoops says that Libya is "in a state of relative legal chaos".
3. No guarantee of a fair trial in Libya
Saif can expect a fair trial in The Hague whereas that appears to be impossible in Tripoli, where the mists of war are only just beginning to disappear. As Mr Knoops says, "I don't doubt that Saif will not have a fair trial in Libya. Where in Libya could one find an impartial judge who might acquit him? No outcome other than the death penalty is possible."
4. Disastrous for the ICC
Should Saif not be tried in The Hague, it would mean a disastrous loss of face for the ICC, international lawyer Knoops thinks. "It will cause a major uproar among UN member states because it amounts to a breach of the UN resolution, and it will lead to anger among human rights organisations. The worst example was the trial of Saddam Hussein in Baghdad. That was really a sham trial."
Luis Moreno Ocampo, the ICC's Chief Prosecutor, will travel to Tripoli later this week for negotiations about Saif al-Islam's trial. What might the outcome of his visit be? Geert-Jan Knoops: "His mission will be to convince the Transitional Council that Saif should be handed over to the ICC in The Hague. That is what the system is for. If the Libyan rulers insist on trial in Libya, there may still be a diplomatic solution: a trial held in Libya but under ICC auspices, with ICC judges. Technically it is possible, although time-consuming, but it may turn out to be the only solution."
In collaboration with Tareq Agoob & Richard Walker.