THE climax of a bitter war between Libya and the International Criminal Court over the fate of Saif Gaddafi is due in the coming days when judges decide whether Tripoli has the right to hold his war crimes trial.
The case has become the most acrimonious in the court’s short history, after Libya’s refusal to hand over the son of the country’s late dictator, and the unprecedented arrest of ICC officers here last summer. And whatever the decision, more controversy is set to follow.
Until last year’s Libyan uprising, Saif, 40, portrayed himself in the West as a reformer. He enjoyed a playboy lifestyle, lived in a London mansion and talked of easing his father from dictatorship to democracy. He was even granted a doctorate by the London School of Economics – the director of which resigned last year when it emerged Saif had channelled £1.5 million into university coffers.
The Arab Spring changed all that, and Libyans still remember Saif’s frenzied speech on live television when he wagged his finger at the rebels, threatening to crush them.
That finger was physically missing when he was arrested in the southern Sahara while trying to flee the country last November. The rebels who arrested him, from the mountain town of Zintan, have refused to hand him over to Tripoli, leveraging his custody to gain important political concessions, including the appointment of their militia commander as defence minister.
Saif was indicted by the ICC in The Hague in June last year charged with war crimes and crimes against humanity. Prosecutors said he acted as his father’s de facto prime minister, managing a murderous campaign of torture, murder and bombardment.
ICC rules stipulate that all suspects must be handed over to The Hague. Tripoli has refused, with Libyan officials pointing out that in any case they are powerless, since the Zintan militia is more powerful than the national army.
Successive justice officials have promised a trial in Libya, irrespective of what the ICC thinks, but no trial has ever materialised.
Then in August, Melinda Taylor, an ICC officer appointed to assess Saif’s condition, was arrested in Zintan with three other court officials and held for three weeks, accused of handing him documents that “compromise Libyan security”.
In October, Libya hired distinguished British human rights lawyer Philippe Sands to make a formal case to The Hague for the right to try Saif at home.
To grant this permission, the ICC must agree that Libya can guarantee Saif a fair trial – no easy decision for a country that Amnesty International says has yet to create a functioning justice system. In effect, giving Libya the green light will be a shot in the dark for the ICC.
But a refusal will be just as contentious: Libya is almost certain to refuse to hand over Saif, together with a second ICC suspect, former intelligence chief Abdullah Al Senussi.
The court has no police force of its own, and no way to compel a state to hand over a suspect. The only option is to complain to the UN Security Council.
After ten years and more than £500 million spent, the court has achieved just a single conviction, leaving many wondering if international war crimes justice has a future.
Meanwhile, Muammar al-Gaddafi’s last prime minister, Baghdadi al-Mahmoudi, has gone on trial in Tripoli charged with “acts that led to the unjust killing of Libyans”.
Mr Mahmoudi and two others are also accused of funnelling about $25m (£15.5m) of public money through Tunisia to help forces supporting Gaddafi.
His two co-defendants, Amer Saleh Tervas and Mabrouk Zhmul, were managers of a company overseen by Saif Gaddafi.