Libya's tug-of-war over Saif al-Islam

Libya has asked the International Criminal Court (ICC) to abandon its legal action against Saif al-Islam Gaddafi and the country’s former intelligence chief so that both men can be tried in Tripoli where they could face the death penalty.

The 58-page submission, drawn up with the help of British lawyers, argues that the country is restoring its judicial system rapidly and that the men should be tried for their alleged crimes in a national court.

Saif al-Islam, who studied at the London School of Economics, was expected to succeed his father, Muammar Gaddafi. After the regime fell he was captured, last November, near the town of Obar while apparently fleeing to Niger.

The Libyan government insists he has been held in “adequate conditions of detention” in the southern city of Zintan “which will improved even further” once he is transferred to a prison in Tripoli.

Abdullah al-Senussi, Gadaffi’s brother-in-law and former head of intelligence, was arrested by the government of Mauritania in March. Assurances have been given that he will be returned to Libya.

In contact
The Libyan submission to the ICC says: “The severity of Mr Al-Senussi’s liver disease has become apparent and his health condition is now such that it is understood that he cannot presently be investigated domestically for breaches of Mauritanian law, let alone transferred back to Libya.”

The justice ministries of both countries are now in contact “to determine when his transfer will be possible”.

The Libya request, released by the ICC, has been drafted by Philippe Sands, QC, a professor at University College, London, Payam Akhavan, a Canadian international law professor, and Michelle Butler, a barrister in London.

Their submission declares: “The national proceedings ...
are consistent with the Libyan government’s commitment to post-conflict transitional justice and national reconciliation. It reflects a genuine willingness and ability to bring the persons concerned to justice in furtherance of building a new and democratic Libya governed by the rule of law.

“To deny the Libyan people this historic opportunity to eradicate the long-standing culture of impunity would be manifestly inconsistent with the object and purpose of the [principles of the ICC] which accords primacy to national judicial systems.”

Criminal procedure
Libya is asking for the ICC to declare its claim to try the two men as “inadmissible” and to abandon its request for their surrender.

The Libyan code of criminal procedure is based on the Italian model but includes capital punishment.

“Where a death penalty has been imposed following conviction, the sentence cannot be carried out until the case has been considered by the [Libyan] supreme court,” the ICC was told. “There is also a possibility under Libyan law for commutation of a death sentence to one of life imprisonment in cases where the family members of victims ‘forgive’ the convicted person.”

The Libyan government submission contains a sideswipe at the ICC’s Office of Public Counsel for the Defence, which, it says, complained about poor treatment of “Gaddafi and [mentioned Libya’s] purported intention to charge him only with offences relating to camel licensing and the cleanliness of fish farms owned by [him]”.

Some sections of the Libyan document, relating to specific accusations and those already interviewed as witnesses, have been redacted from the document. Some of the evidence is said to include “intercept evidence of the speeches and telephone calls of Gaddafi during February 2011 and thereafter”.

The Libyan investigation includes scrutiny of orders to kill anti-regime protestors. “The prosecutor-general also has documentary evidence that is presently being obtained, including passenger manifests and payment records for the transport of mercenaries on Afriqiyah Airways from various African countries to Libya, in order to help Gaddafi forces during the revolution.

Captured rebels
“One notable allegation against Senussi which is being investigated by the military prosecutor and is mentioned in a report by the prosecutor-general is the shooting of a number captured rebels hors de combat (combatants no longer fighting) by Senussi, his son Mohamed, and other supporters at Geleana bridge in Benghazi.”

Both Senussi and Saif al-Islam are also being investigated for financial crimes, the submission says.

It adds: “In addition to being investigated for crimes allegedly taking place during 2011, Senussi is also being investigated for other serious crimes taking place in Libya prior to the revolution.

“One such crime is the massacre at Abu Selim prison which took place on June 27 1996 and which resulted in the massacre of 1 270 prisoners in the prison yard following their complaints about poor treatment.

“Statements of six eyewitnesses have been taken in relation to this incident and these statements attest to the personal involvement of Senussi in the mass killing that day.”

Both men are said to be likely to face charges in the Libyan courts of “intentional murder, torture, incitement to civil war, indiscriminate killings, misuse of authority against individuals, arresting people without just cause, and unjustified deprivation of personal liberty”.—

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