Doubts remain about whether the war crimes trial of Saif al Islam Gaddafi, due to begin in Libya by April 13, will actually go ahead. If it does, it will be in defiance of the International Criminal Court (ICC), which demands Gaddafi’s transfer to The Hague.
By Chris Stephen, Tripoli
Saif, once tipped to take the reigns of power from the late Muammar Gaddafi, remains confined in isolation in a villa in the mountain town of Zintan, 90 miles south of Tripoli.
In February Libya’s leader, Mustafa Abdul Jalil, promised that Saif would be brought from Zintan - whose militia arrested him last November - to Tripoli for trial by April 13.
But Tripoli is now embroiled in a dispute with the ICC, which has accused Saif of war crimes and crimes against humanity, and has given no permission for a trial on home soil.
No way, ICC
On Sunday Libya’s justice minister Ali Ashour confirmed that Libya had “no intention” of handing Saif to the ICC, but gave no indication of whether the trial will start as promised, this Friday.
The ICC allows states to hold trials on home soil, but only if they make a formal challenge. Hague judges must be satisfied the state can guarantee a fair trial.
Libya’s governing National Transitional Council has promised to make such a challenge by April 30 - but has separately said Saif’s trial will begin this week.
“It is clear that the ICC will not be in a position to render its decision on the admissibility of the case until after Gaddafi has been tried, and potentially sentenced and executed,” writes Xavier-Kean Keita of the ICC’s defence unit, in documents released last week. “The postponement of Gaddafi's surrender could therefore be at the cost of his life.”
Keita, lawyer for the ICC’s Public Council for the Defence, accuses Libya of obstruction in his efforts to meet Saif: “The Registrar was informed that Gaddafi had only been questioned in connection with his alleged failure to have licenses for two camels, and cleaning of fish farms.”
More recently, he records, Libya has changed its mind and told the court it is investigating Saif for: "Murder, mass murder, torture, rape, financial corruption and stealing public funds in Libya and abroad".
Yet Libya has obstacles to overcome before it can hold such a trial.
Firstly, Saif has yet to be handed over to the Tripoli authorities by the powerful militias of Zintan, which captured Saif as he fled through the Sahara desert in November.
Secondly, Libya has not gazetted its full law on transitional justice, meaning that the country is, legally, still lawless.
Yet the ICC has been told by the Libyan authorities that the trial must end before elections on June 23.
Libya’s government remains in a state of flux. The NTC is a secretive organisation, with no public relations office and meetings behind closed doors.
A jail inside Tripoli’s women’s prison, has been built for Saif in the Tripoli suburb of Tajora.
If Libya goes ahead with the trial before making a challenge to the ICC, it will put the country in violation of the UN Security Council resolution 1970 which ordered all member states to cooperate with the court.
In Libya itself there is little sympathy for Saif’s plight. One newspaper editor said most Libyans would be happy to see a trial behind closed doors and execution of a man seen as one of the architects of the repressive regime.
Fair trial struggle
But the NTC may struggle to convince Hague judges that it is capable of holding a fair trial.
The only other war crimes trial it has tried to hold, for 41 suspects in Benghazi in March, was adjourned by a military court which ruled that, as the defendents were not soldiers, it had no authority to try them.
Libya is meanwhile embroiled in a separate tug-of-war with the ICC for custody of Abdulla Senussi, Gaddafi’s former intelligence chief, who was arrested in March in Mauritania.
Senussi faces the same ICC charges as Saif, and is also wanted by France which has convicted him, in absentia, of the destruction of a French air liner over Niger in 1989.
The risk for Libya is that, as with its challenge to the ICC, it may fail to convince Mauritanian judges at an extradition hearing that it has a legal system capable of guaranteeing a fair trial.