Tripoli, 12 January 2013:
The International Criminal Court has . . .[restrict]asked Libya to explain reports that it plans to commence the trials of Saif Al-Islam Qaddafi and Abdullah Senussi as early as next month.
Last week, Justice Minister Salah Margani announced on television that “Saif Al-Islam Qaddafi, former Prime Minister Al-Baghdadi Al-Mahmoudi and Qaddafi’s former spy chief, Abdullah Senussi, will be put on trial as soon as questioning is completed within the next month, as expected”.
Both Saif and Senussi are wanted for trial by the ICC on charges of crimes against humanity.
Mahmoudi’s trial commenced on 12 November but has twice been adjourned, with the former prime minister next due to appear in court on 14 January.
Libya’s dispute with the ICC over where the trial of Saif and Senussi should be held has been ongoing since the end of the revolution. As a court of last resort, the ICC is only mandated to take on cases from countries deemed either unable or unwilling to give suspects a fair trial.
The ICC took on the cases of Saif and Senussi (together with Muammar Qaddafi before his demise) during last year’s revolution, when Libya was clearly neither willing nor able to give the men a proper trial.
With the new government now in place, the question is not whether Libya is willing, but able to ensure due process. The ICC is currently considering that question regarding the Saif trial and has yet to reach a verdict.
Should the ICC rule that Libya is not competent, and the government decides to proceed anyway, there is very little in practice that the court could do about it.
Over the past 12 months, both the NTC and the government have repeatedly insisted that any trial for these men will be free and fair, a point made all the more important owing to the potentially adverse impact on Libya’s international reputation if the trials are seen to be otherwise.
Either way, it is still very far from certain that the trials of either Saif or Senussi will begin in February. Last year saw various announcements from the authorities of an imminent Saif trial, which invariably turned out to be false.
Regardless of the ambitions of the government in Tripoli, no credible trial of Saif can take place until his captors in Zintan agree to hand him over, and there has been no official word of progress on that front as yet.