The International Criminal Court in the Hague has in effect begun its proceedings against Muammar Gaddafi's son Saif Al-Islam. The problem for the ICC is that the accused is not present. He remains in Zintan, in Libya, in the hands of the local militia that captured him last year. The Libyan government has refused to hand Saif over to the ICC and is arguing in the Hague that it can and will give Gaddafi a fair trial in Libya. Its lawyers told the international court judges yesterday that they needed more time in which to prepare their war crimes case against him. The ICC meanwhile remains adamant that it is the proper authority to try Gaddafi. Originally it stuck to its insistence that the dead dictator's son be handed over for trial in the Hague, along with the former intelligence chief, Abdullah Senussi, recently extradited to Libya from Mauritania. It has since indicated that it might be prepared to hold the trials in Libya, but made it clear that it wishes to conduct the process according to its own rules, and nobody else's. The ICC's concern that neither Gaddafi nor Senussi would receive a fair trial was heightened when the defense counsel it had appointed, Australian lawyer Melinda Taylor, was arrested along with three colleagues, when she visited Saif in his Zintan prison. Accused of being a spy and of handing the prisoner documents that endangered Libyan security, she and her team were held for almost a month, until finally released. What happened to her and what little it appears she learnt from her client, have convinced Taylor that there can be no question that he will receive a fair trial. And she has not been shy about saying this publicly before presenting her detailed argument to the ICC judges. The problem is that the ICC, in sticking doggedly to its rules and procedures, is ignoring the realities facing an already highly-fragile Libyan state. One reason why the Libyan government refuses to extradite Gaddafi is that it could not do so, even if it wished. The Zintan brigade that holds him insists on keeping him and wants him to be tried in Zintan itself, a city in the Nafusa mountains in the northwest of the country. The arrest of the ICC legal team was an acute embarrassment to the interim government. It took a great deal of bargaining before the militiamen agreed to release them. And therein lies the essence of the problem facing whatever new Libyan government is created, if the freshly-elected General National Congress can agree, hopefully within the next few days. The country is riven with rival factions, each of which is jostling for greater power and influence. To the despair of Libyan moderates, these narrow interests subsume the wider and most pressing priority of building a stable, democratic state.
For the people of Zintan, Saif Gaddafi is the ultimate bargaining counter with which they can hope to extract considerable concessions, and maybe even riches, from the government. The idea of due process or a fair trial for their star prisoner is of no consequence to them at all. They know that the minute they let him go their leverage over the authorities in Tripoli will disappear. In such circumstances, it currently seems hard to imagine that Saif Gaddafi will ever have a trial, let alone a fair one.
