Libya Admits It Should Lose Its Complementarity Challenge Re: Saif

Not in so many words, of course.  But that’s the upshot of the Libyan government’s most recent statements.  Saif recently appeared for the first time in a Libyan court; his trial, which was supposed to start this month, is now set for May 2013 because the Libyan government has still not provided him with counsel.  Don’t be fooled into thinking, though, that Saif will stand trial for the crimes against humanity of murder and persecution — the charges at the ICC.  No, according to AP, the charges in Libya are, shall we say, a bit different:

The imprisoned son of slain dictator Moammar Gadhafi made his first appearance on Thursday in a local court on charges of harming state security, attempting to escape prison and insulting the nation’s new flag, Libya’s official news agency said.

LANA says the trial of Seif al-Islam Gadhafi, the ousted leader’s longtime heir apparent, was held in the western town of Zintan where he is being held by militiamen. The spokesman of Libya’s General Prosecutor Taha Baara quoted Seif al-Islam as saying: “only God will defend me.”

The charges are linked to his June meeting with an International Criminal Court delegation accused of smuggling documents and a camera to him in his cell. The four-member team was detained by Zintan rebels but released after the ICC made an apology and pledged to investigate the incident.

The ICC declined comment on what it called “national proceedings,” which on Thursday were adjourned until May so that a lawyer could be assigned Seif al-Islam, the most senior member of the ousted Gadhafi regime to be captured alive in 2011.

There is no reason to revisit the ridiculousness of the charges involving Melinda Taylor and the OPCD — the fact that they are at the heart of Saif’s domestic prosecution simply serves as a reminder of Libya’s contempt for the ICC.  It is important to emphasize, however, that Libya’s complementarity challenge can succeed only if Libya’s domestic prosecution of Saif is based on the “same conduct” as the ICC proceedings.  That is obviously not the case.

Libya could argue, of course, that it is continuing to investigate Saif for the conduct underlying the crimes against humanity charges, so it is not inactive with regard to that conduct.  But there is a problem with that — Taha Baara, the spokesperson for Libya’s General Prosecutor, has admitted that the requisite investigation is over:

Baara said the Zintan tribunal would convene again on May 2.

“Investigations for trying him for war crimes are over and he will be put on trial for that at a later time,” Baara told the Reuters news agency.

From a complementarity perspective, vague promises to prosecute Saif for “war crimes” at some point in the future are not good enough.  Libya must either be actively investigating Saif for the same conduct or actively prosecuting him for that conduct.  By its own admission, it is doing neither.  Libya’s complementarity challenge, therefore, must fail.