Former Libyan political prisoner Abdel Basset al-Megrahi and Seif al-Islam speaking on national television after Abdel's release from a Scottish prison. The US administration led the overthrow of Gaddafi. Al-Meghrahi died in 2012., a photo by Pan-African News Wire File Photos on Flickr.
Libya wants ICC hamstrung via Aussie's capture
by Barak Barfi and Jason Pack
From: The Australian
June 18, 2012 12:00AM
THE detention of International Criminal Court officials in Libya - including Australian Melinda Taylor - highlights the key fault lines in post-Gaddafi Libya among the central government, the militias and various international actors.
Taylor, a lawyer assigned to represent deposed dauphin Saif al-Islam Gaddafi, was incarcerated earlier this month for allegedly passing her client coded messages from Mohammad Ismael, a former Gaddafi-regime official wanted for war crimes.
The incarcerated officials are pawns in a larger conflict between the proactive ICC led by Luis Morano Ocampo, who is eager to secure Gaddafi's extradition, and Libya's interim government, which is reluctant to turn over the most prominent living symbol of the regime it overthrew.
But although they are the "legitimate" actors in this saga, it is a non-state actor, the militia from the city of Zintan that captured Gaddafi, who holds most of the cards.
The simmering tensions between the ICC and Libya were bound to explode after Taylor's last meeting with Gaddafi on March 3. Libyan authorities imposed a never-ending series of conditions, only to relent every time the ICC officials demurred. The standoff stemmed from the ICC's refusal to grant Libya's interim government, the National Transitional Council, the right to try Gaddafi. In numerous briefs, prosecutors have consistently argued that the ICC retains the jurisdiction to prosecute him.
Libya's case to try Gaddafi would be bolstered if it could marshal sufficient evidence towards prosecuting him, but NTC authorities stumbled out of the gate. The interim government announced its intention to try him on murder charges only on January 8 this year - six months after the ICC arrest warrant for the same charges.
Last week, ICC prosecutors noted that Gaddafi still does not have a local lawyer representing him in Libyan proceedings.
More troublesome is the state of the Libyan investigation. Ahmad Gehani, the NTC's liaison with the ICC, told court officials in March that the murder case against Gaddafi "had been terminated because they had no evidence against him". In lieu of prosecuting him for crimes against humanity, he is being held on charges of not possessing a camel licence and the dubious hygienic conditions on his fish farms.
Though the NTC will eventually bring murder charges against him, the obstacles preventing it from swiftly doing so are reflective of the deeper challenges Libya faces.
After 42 years of "massocracy", which saw Saif's father, Muammar Gaddafi, dismantle ministries and destroy the state bureaucracy, Libya has few functioning government bodies.
The interim government emerging from the institutional rubble Muammar Gaddafi left in his wake is facing a herculean task in building modern ministries. Among them is an independent and transparent justice system.
During the Gaddafi era, "relationships and negotiations took precedence over the legal system", according to US diplomatic cables released by WikiLeaks. Moreover, Muammar Gaddafi set up an informal justice system that had far more power than the formal one. Headed by Revolutionary Committees, it was tasked with keeping Libyans in line and ensuring they did not engage in subversive political activity. As a result, justice in Libya has always been political.
The NTC has few professional judicial officials it can rely on to prosecute Saif al-Islam's case in a way that would demonstrate to observers that he could receive a fair trial in Libya. Indeed, the NTC's latest brief before the ICC was written by British law professors rather than members of the Libyan Justice Ministry.
Cognisant of its challenges yet reluctant to relinquish its most prized prisoner, the NTC understood that another acrimonious meeting with ICC defence counsel would be detrimental to its case to try the younger Gaddafi. As Ahmad Jihani, Libya's representative to the ICC, said in December, "if we don't start to investigate and prosecute Saif, the demand to turn him over to the ICC will come".
In arresting Taylor and her colleagues, the NTC has sought to hamstring the ICC's investigation while sending the court a message Libya will not tolerate an infringement of its sovereignty. In today's Libya, the NTC does not have a monopoly on force. Far from it. It is the countless militias that effectively control the country. After fighters from Misrata detained two British journalists in February, NTC officials were unable to secure their release. The brigade holding the pair refused Human Rights Watch access to them even though the HRW had received authorisation from the Interior Ministry.
The tug-of-war between the NTC and the regional militias does not bode well for Taylor. In time, the NTC is bound to become sensitive to international diplomatic pressure to free her. But with no one to answer to but themselves, the brigades from Zintan are likely to rebuff NTC requests for their release.
Libya is suffering from growing pains as the NTC tries to rebuild a country that existed in name, while simultaneously attempting to impose discipline on the militias that sprouted up to topple the elder Gaddafi.
Caught in the whirlwind is Taylor, whose bosses at the ICC do not fully appreciate how power is bifurcated between the militias and the NTC in the new Libya. To hold on to its last shred of legitimacy, the NTC cannot be perceived as kowtowing to the international community's diktats.
Barak Barfi and Jason Pack are authors of In War's Wake: The Struggle for Post-Qadhafi Libya, published by the Washington Institute for Near East Policy.