Peter Sellers memorably declared in the film “Dr Strangelove”: “Gentlemen, you can’t fight in here, this is the war room!” War crimes judges at the International Criminal Court (ICC) must be burning to shout the same, as the battle between prosecutor and defence over the fate of Saif Al Islam Gaddafi boiled over this week.
By Chris Stephen, Tripoli
Gaddafi, charged by the court with crimes against humanity, was arrested by Libyan rebel forces last November. Since then, Tripoli has refused to hand him over to The Hague.
This week the court’s public defender, Xavier-Jen Keita, accused chief prosecutor Luis Moreno Ocampo of siding with the Libyans and demanded he be removed from the case.
In a court filing boiling with indignation, he accused Ocampo of making misleading statements during a visit to Tripoli this week suggesting a deal has already been done whereby Gaddafi will face trial in Tripoli.
Too close for comfort
“There appears to be a strong perception that the ICC Prosecutor has aligned himself to the interests of the Libyan authorities,” Keita wrote in a court filing. “It might also be appropriate for the ICC Prosecutor to consider recusing himself from the case.”
The issue is a simple one. Under ICC rules, a suspect must be tried at The Hague unless a home state can convince judges that it can hold the trial itself.
Libya has promised to make such an appeal. But it has also said it will hold Gaddafi’s trial no matter what the court’s verdict is, and that his trial will finish by elections on June 23.
This has left Keita incensed. Last week he called on the ICC to report Tripoli to the UN Security Council.
Tit for tat?
Ocampo earlier had suggested to judges that, as Gaddafi had not formally requested a lawyer during a meeting in March with an ICC defence official, Keita be removed from the case.
Judges said no to that one, too, but they have still to make up their minds what to do about a case that is fast spiralling into a major political problem for the ICC.
Libya insists it is taking the court seriously and has hired Phillipe Sands, a leading British Queens Counsel and author of “Lawless World”, which accused the Bush administration of war crimes in Iraq, to make its case to the ICC.
But Libya’s chances of a successful challenge look weak. First, it will have to justify keeping Gaddafi in isolation for months, where he has been denied access to a lawyer as well as family visits.
Second, it has no functioning justice system, with the law on transitional justice still to be gazetted.
And third, Libya is showing signs of disintegration. With separatists in the east and south demanding autonomy, the powerful Zintan militias have refused to hand over Gaddafi to government custody.
Rights groups say Libya is in no position to hold a fair trial. Richard Dicker, head of international justice at Human Rights Watch in New York, told RNW: “Credibility? That’s exactly what they [Libya] won’t have with a kangaroo process in Tripoli and a quick execution. That’s an Iraqi solution.”
How, then, to convince the ICC that Gaddafi can have a fair trial, given Tripoli’s promise to have the whole legal process done and dusted--with possible execution--inside two months?
Hague judges will also be mindful that they themselves set a precedent last year when they ruled out a petition by Kenya to hold a domestic trial of four officials accused by the ICC of crimes against humanity.
How can Libya, without a functioning justice system, possibly make a stronger case than Kenya, which has one?
And what if Libya simply goes its own way? At that point, the ICC is powerless. It can complain to the UN, which ordered the case in February of last year, but the Security Council has no legal measures to invoke. Any sanctions or other actions will be political decisions, not judicial ones.