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ICC Refers Libya to the UN For Not Handing Over Qaddafi’s Son

The ICC and Libya have been fighting for three years over who gets to try Saif al-Islam Qaddafi, who is being held by a militia outside of Tripoli.
Photo par AP/Ben Curtis

The International Criminal Court (ICC) has referred Libya to the UN Security Council for failing to hand over former Libyan leader Muammar Qaddafi's son for trial after he was captured by rebel fighters in 2011.

The ICC issued a warrant for Saif al-Islam Qaddafi's arrest in June 2011, for two counts of crimes against humanity — murder and persecution — committed in February 2011, at the height of the Libyan revolution. Saif al-Islam is currently held by a militia and detained in a jail in the city of Zintan, 110 miles southwest of Tripoli.

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— Afropages (@Afropages)11 Décembre 2014

Fought between February and October of 2011, the Libyan Civil War was led by a collection opposition groups that sought to oust Colonel Muammar Qaddafi's government and opposed those connected with his regime. Qaddafi was executed in front of a mob on October 20 of that year after more than 40 years in power. A month later, Saif al-Islam was arrested by rebel fighters, along with Qaddafi's former head of intelligence Abdallah al-Senussi, whose extradition the ICC is also seeking.

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By referring the matter to the UN, the ICC aims to put an end to a three-year wrangle with Libya over Saif al-Islam's extradition. In May, the ICC appeals chamber rejected an appeal by the Libyan government to try the former dictator's son in domestic courts. Libya appealed again in June, and asked to postpone the transfer of Saif al-Islam until the court had pronounced on the issue. The court rejected the appeal in July, and ordered Libya to extradite Saif al-Islam and al-Senussi to the ICC tribunal in the Hague. Wednesday's referral to the UN marks the latest turn in a three year tug-of-war.

The ICC can only try a suspect if their home country's judiciary system is unable or unwilling to lead a regular investigation and guarantee a fair trial. According to the ICC, the current political and military turmoil in Libya severely compromises the country's ability to provide the two suspects with a fair trial.

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In a statement released on May 31, 2013, the ICC found that "multiple challenges remain and that Libya continues to face substantial difficulties in exercising its judicial powers fully across the entire territory." The court also argued that Libya had so far failed "to secure the transfer of Mr. Qaddafi's custody from his place of detention under the Zintan militia into State authority," despite assurances it would. Libyan authorities, it added, had also failed to show how it would "overcome the existing difficulties in securing a lawyer for the suspect."

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Human Rights Watch, which endorses the ICC's demand for Saif al-Islam's extradition, said it met with Qaddafi's son on January 23, 2014. During his meeting with the organization, Saif al-Islam claimed he had not been given access to a lawyer and that he had already been interrogated several times without the presence of legal counsel.

Patrick Haimzadeh, a French diplomat in Tripoli from 2001 to 2004 and the author of a book on Qaddafi's Libya, told VICE News that it is hard to assess exactly what role Saif al-Islam played in the bloody repression of 2011.

"It's difficult to say for sure what his responsibilities were, or which orders he may have given out," Haimzadeh said. "Before the revolution, he came across as a reformer, but on February 20, 2011, he gave a controversial speech that was highly ambiguous."

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Haimzadeh is referring to a television appearance by Saif al-Islam, early on in the conflict. In the first half of his address, he spoke of dialogue, reform, and the constitution. But in the second half of his speech, the former leader's son promised "thousands of dead and rivers of blood throughout Libya" if the rebels continued to rise up against the regime.

According to the former diplomat, Libya's population and rebel groups are strongly opposed to Saif al-Islam's extradition. For the insurgents who fought to topple the regime in 2011, Saif al-Islam's arrest is a symbol of victory. Haimzadeh also explained that even if Qaddafi's son is handed over to the Hague, the ICC may not be able to gather sufficient evidence to convict him. The ICC is prohibited from using the death penalty, which is used in Libya.

Haimzadeh was skeptical about the weight the ICC's referral to the UN will carry. "The referral to the Security Council is symbolic," Haimzadeh said. "Because Qaddafi is being held by the Zitouni tribe, who see him as leverage, and also because the Libyan State does not have the ability to recapture him."

"Unless they send in international troops to get him," Haimzadeh explained "I don't see how he will be brought to trial in the Hague."

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Follow Virgile dall'Armellina on Twitter: @armellina