Is Libya too scared to put Saif Gaddafi on trial?

Fadil Aliriza reports from Zintan on the long wait for the dictator’s son to be tried – and the conspiracy theories that are filling the vacuum

Saturday 17 August 2013 02:02 BST

Saif al-Islam Gaddafi in a defendant’s cage in a courtroom in Zintan (AP)

On an old Saharan road in the small hours of a cold November night, darkness cloaked a Bedouin commander and his 14 men waiting in ambush.

At 2:30 in the morning, their patience and their intelligence sources were proved justified, and two cars travelling along Libya’s borders with Niger and Algeria became mired in a depression in the sand.

One man exited the first car, immediately fell flat, and buried his face in the sand. Commander Alajmi Ali Ahmed al-Atiri raised the man to his feet to inquire who he was.

“He said: ‘My name is Abdessalam al-Tergi. I’m a camel herder and I’m going to my herd,’” recounts Atiri. “And when he asked: ‘Who are you?’ I responded: ‘We are the revolutionaries of Zintan and [the] Hutman [tribe], oh Saif,’ and that’s when he knew that we recognised him.”

Atiri and his men had caught the son of the former dictator Muammar Gaddafi and his presumed heir, Saif al-Islam Gaddafi. After years complementing his father’s iron-fisted rule, Saif’s thwarted escape and arrest constituted his first taste of justice, and his first appeal was about to be denied.

“His first request was: ‘Kill me.’ We told him: ‘Even the mercenaries you have brought to fight us, we don’t kill them when they put down their arms.’ He insisted on asking us to kill him,” says Atiri. “We refused, and his second request was to go to Zintan. And we granted it.”

The central government has built a special facility in the capital of Tripoli to hold Saif, while the International Criminal Court (ICC) has ordered that he be surrendered to The Hague. But nearly 20 months since his capture, Saif remains in the western mountain town of Zintan, incommunicado. His case and how it is handled constitute a major test for Libya’s post-revolutionary justice.

Libya’s central government has been trying to transfer Saif to Tripoli since at least as early as February 2012. There is no definitive explanation for why these efforts have so far failed. However, most believe that the weak central government simply doesn’t have the capacity to impose its will on the city of Zintan, whose fighters were key to toppling the old regime and whose brigades still play an important security role in the capital. Many say that Zintan is keeping Saif as a powerful bargaining chip in its relations with the central government, a view confirmed by one international legal expert who has been following the case closely but who spoke on condition of anonymity. The government has since backed off a bit, with some officials now saying that Saif’s trial could be held in Zintan or Tripoli.

But Zintanis tell a different story. They say that the central government is in control of Saif’s case and decided to keep him in Zintan since the town is extremely secure and does not host competing political factions like the capital. Still, local officials in Zintan do not hold back in their criticism of the government’s handling of the case.

“The government’s dealing with the Saif issue is very bad,” says Shiekh Mohammed el-Waqwaq, head of Zintan’s local council.

Atiri, Saif’s captor and jailer, says that some in the central government are actively preventing Saif from going to trial. “The Libyan government does not want to present him to a trial because during the trial he will open many documents that relate to the government and the members of congress,” says Atiri. “They are implicated in the theft of money during the previous government and the present one.”

In this one regard, Zintan finds itself on the side of the ICC, which has decided that the Libyan government is incapable of handling the case. Some of the main reasons cited in ICC documents include the fact that Libyan authorities are not charging Saif with exactly the same charges that the ICC is investigating, that Saif doesn’t have access to a lawyer, and that witness protection is not adequate in Libya.

International observers also note their concern at the state of human rights.

“We’ve found that torture of detainees is relatively widespread in Libya,” says Marieke Wierda, a senior transitional justice officer for the UN’s special mission to Libya. “The Ministry of Justice is committed to stopping it, but it is happening at different individual facilities.”

Saif’s jailers deny that they abuse any of their prisoners. “He has all his rights inside the prison,” says Atiri, adding that Saif enjoys air conditioning, television, radio, a refrigerator, regular outdoor access and library access in his special solitary cell, whose exact location in Zintan remains hidden.

Amnesty International has documented decreasing but still present practices of torture in detention facilities across Libya. In the case of Saif, Amnesty says they are more concerned with his inability to speak to a lawyer. “Saif al Islam’s lack of access to his lawyers is a worrying indication that a trial in Libya may not be genuine,” says Stephanie Barbour, Amnesty International’s international justice co-ordinator.

This view is reflected by Saif’s defence lawyer, John Jones, who rang the alarm bells late last month in an open letter addressed to the UK’s Foreign Secretary William Hague, calling on him “to condemn Libya for its breaches of international law and to call upon it to comply immediately with the ICC’s order.”

“I’m seriously concerned that there’s a risk, if he’s put on trial, that he’s going to have a show trial and that he will receive the death penalty,” Jones told The Independent.

One top Libyan official, speaking on condition of anonymity, responded directly to Jones’s open letter. The official said that Jones’s responsibilities to his client colour his analysis of Libya’s capacity to hold a trial.

“He’s a lawyer. All lawyers always ask what they want for their clients,” the official said, adding that a trial for Saif outside of Libya would be “totally unacceptable” to the Libyan government and its people.

The Minister of Justice was unavailable for comments.

And if Jones’s points seem to be backed up by the ICC’s approach to the case, that may reflect the ICC’s own push to have jurisdiction over the case.

“In a way, the ICC is competing for the case with Libya,” said the same international legal expert speaking on condition of anonymity.

When the ICC first requested that Libyan authorities hand over Saif, those authorities included Saif and others allegedly committing war crimes. Now, despite the fact that the Libyan authorities have changed since the revolution and are actively seeking to prosecute those responsible for the crimes, the ICC’s approach has not changed.

“The criteria we check is not who is in power, but is the judicial national system capable of and willing to prosecute the same case,” says Fadi el Abdallah, a spokesperson for the ICC. “It’s not a matter of who is in the government.”

Another reason that the ICC continues to fight for the case may simply be inertia, according to the legal expert. “Once you start an ICC process, it becomes a force of its own,” he said.

And that process doesn’t seem capable of adapting to the fact that a city, rather than a state, appears to be in charge of Saif’s future.

“The ICC can’t deal with [the city of] Zintan. They don’t have a choice but to deal with states,” says the UN’s Wierda.

Yet it may be on Zintani soil that Saif ultimately faces justice. After 42 years of dictatorship, fear, and a state embodied by a single family, many Libyans seek justice, while others seek revenge.

“There is a risk that people will perceive the current court cases more as revenge than justice,” says Wierda, who has experience in post-war Iraq. She notes that a similar approach there fuelled continuing vengeance instead of establishing the foundations of an equitable judicial system

But Atiri says he’s ready for a fair system of law, and that achieving an independent, fair judiciary was one of the prime motivations for the Libyan revolution.

“In the era of Gaddafi, there was injustice; there were no courts. The 17 February rose out of that,” says Atiri, referring to the date that Libya’s revolution began. “We aspire for an independent judiciary. We want to demonstrate this justice to the world.”

And Atiri has a message for the ICC. “We want them to know the Libyan justice system is the primary justice system in the Saif case and the international justice system is secondary. The people of the city of Zintan will provide a fair trial to Saif and we will provide all the help to the defence team,” he said. “We don’t know the crimes he will be convicted of, but we expect that his punishment will be commensurate with the crimes that he has committed.”

Timeline: The fall of Saif al-Islam

15-16 February 2011

The arrest of human rights activist Fethi Tarbel starts a riot in Benghazi.

26 February

The UN Security Council imposes sanctions on Gaddafi and his family, and refers the crackdown on the opposition to the International Criminal Court.

27 February

Saif al-Islam says his father will not step down.

5 March

The rebel National Transitional Council (NTC) in Benghazi declares itself Libya’s sole representative.

17 March

The UN Security Council votes to authorise a no-fly zone over Libya and military action to protect civilians against Gaddafi’s army.

27 June

The International Criminal Court (ICC) issues warrants for Gaddafi, Saif al-Islam and intelligence chief Abdullah al-Senussi on charges of crimes against humanity.

31 August

In a television interview Saif al-Islam says “the leader is fine” and “we will have victory soon”.

14 October

Gunfights break out in Tripoli between Gaddafi’s army and National Transitional Council forces.

20 October

Gaddafi is captured and killed as NTC fighters take his home town, Sirte, ending a two-month siege. Gaddafi’s son Mutassim is reported dead.

19 November

Saif al-Islam is detained near the town of Obari by fighters based in the western town of Zintan.

23 January 2012

Libyan authorities decide to try him in Tripoli.

5 April

ICC says Libya must hand over Saif al-Islam to be tried at The Hague on the outstanding warrant for crimes against humanity.

9 October

The Libyan government argues it should not have to hand over Saif al-Islam to the ICC because it has no jurisdiction in the case.

31 May 2013

The ICC rejects Libya’s bid to try Saif al-Islam and asks that it hand him over.