Saif Gaddafi has been in custody in Zintan since November 2011, when he was captured in the wake of the uprising which overthrew his father’s four-decade-long rule. He has been implicated in the torturing and killing Libyan civilians as well as financial corruption. The Libyan government and the International Criminal Court (ICC) have since been at odds over where he should face prosecution.
In April, reports circulated widely that a deal to try him in Libya was "close to being agreed". However, following the arrest of four ICC lawyers visiting him in detention on suspicion of passing coded documents to him, the issue looks far from resolution. After being held for four weeks, they were released on July 2. But this has brought a wider debate to the fore: Does Saif al-Islam Gaddafi’s deserve to have his basic human rights upheld?
That, it seems, is the question Saif Gaddafi’s friend Mishana Hosseinioun wanted the ICC to answer when she instructed barristers Geoffrey Nice and Rodney Dixon to apply for “leave to submit observations before the Pre-Trial Chamber” of the ICC on matters concerning Saif’s treatment. The application argues that the ongoing detention and interrogation of Saif Gaddafi, in circumstances where he has no access to lawyers or to friends and family, is a violation of his rights under the African Charter of Human and Peoples' Rights.
The Libyan government has insisted that Saif will be tried by Libyan judges, but the ICC and some human rights organisations say the country is unable to give him a free and fair trial. And calls for Saif’s handover to The Hague have grown louder amidst reports the defendant has been physically attacked, kept in isolation, and denied contact with family and friends.
What has been exposed is the tension between the values of law and justice on the one hand, and the cold reality of politics on the other.
Courtenay Griffiths QC, the British lawyer who defended former Liberian President Charles Taylor, is very clear about what ought to be the guiding principle in any attempt to resolve questions of ‘rights vs. politics’. “I was taught at law school that whether you are a princess or prostitute, you are treated equally before and in the eyes of the law”, he declared to resounding applause at a recent conference in London.
This does not necessarily appear to be the case in Libya’s post-revolution judicial system. Serious questions have been asked of Libya’s ability to prosecute and investigate effectively, and the issues raised by the lawyers go to the heart of the debate about the independence, impartiality, and fairness of criminal proceedings in Libya. This includes the fundamental issue of Saif’s pre-trial rights and, in particular, whether he has access to counsel and is being treated properly whilst in detention.
In her application, Mishana Hosseinioun says that she has been trying since January 2012 to get access to Saif Gaddafi, but that she has not been able “even to make a single phone call to him”. This, Hosseinioun’s lawyers argue, “is an astonishing situation for a country whose authorities claim in their filings [at the ICC] to be adhering to international standards”.
When Mishana’s lawyers contacted the Zintan authorities, they were told that the prosecutor-general of Libya’s ruling National Transitional Council (NTC) needs to provide written permission for any visit or contact with Saif Gaddafi to be allowed. In his filings at the ICC however, the prosecutor-general is reported to have said something completely different by laying the blame on the Zintan authorities for, as he put it, “not co-operating to facilitate access to Mr Gaddafi”.
Mishana’s application for leave to submit observations to the ICC’s Pre-Trial Chamber was also accompanied by a separate annex detailing the steps – all thirty two of them – she took in trying and failing to get access to Saif. One of the most telling of these was a call to the Libyan embassy in London by her lawyers to establish whether their client’s messages to the Libyan prosecutor-general, attorney-general, and justice minister had been received.
In response, Ms Salwa, an official at the embassy, said they had “heard nothing back”. When asked if there was any other way to contact the prosecutor-general, or indeed any other government official, Ms Salwa said this information “is not for you”.
Another route Hosseinioun took was to contact the African Commission on Human and Peoples’ Rights in Addis Ababa and request that matters concerning Saif Gaddafi’s human rights be heard by the African Court of Human Rights. The Commission subsequently asked the Libyan authorities to submit their response on the issue of upholding Saif Gaddafi’s rights. No direct response from the Libyan authorities was received.
However, in their admissibility application at the ICC, Libyan authorities maintained that Saif Gaddafi has been able “to receive visits from NGOs and family members”. Louis Moreno-Ocampo, the ICC’s Chief Prosecutor at the time, also told the UN Security Council that Saif had “received visits from the ICRC [International Committee of the Red Cross], NGOs and family members”.
Mishana, however, disputes all that, insisting in her application to submit observations to the ICC’s Pre-Trial Chamber that to the best of her knowledge, “no access to family has been granted and that the ICRC has not had any visits since its one visit back in November 2011”.
There are also disputes over allegations that Saif Gaddafi may be suffering physical abuse in detention. The Libyan authorities dismiss such allegations as “irresponsible and patently false”, and claim “no evidence has been tendered to support them”. In their submissions however, Mishana’s lawyers insist that their client “could provide evidence which the Libyan authorities claim does not exist”.
All these things could suggest one of two things, both of which the NTC is no doubt keen to distance itself from. First, that it is presiding over a dysfunctional government, and second, that it has a “flexible attitude” toward the strict observance of human rights.
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