Libya Admits (Again) It Should Lose Its Admissibility Challenge

by Kevin Jon Heller

Libya has filed yet another brief concerning the admissibility of the case against Saif Gaddafi. The new brief is more than 50 pages long, so it’s going to take some time to digest. But we really don’t have to go beyond pages 22-24, because Libya’s admissions in those paragraphs doom — or at least should doom, if the Pre-Trial Chamber would ever actually rule — its admissibility challenge:

48. The Libyan Government does not deny that Saif Al-Islam Gaddafi remains in Zintan (one of the largest cities in north-western Libya) and that efforts to arrange his transfer to a detention facility in Tripoli are ongoing.[57] During his incarceration in Zintan Saif Al-Islam Gaddafi has been visited by representatives of the International Committee of the Red Cross and Human Rights Watch on several occasions.[58] Permission was granted by the Minister of Justice, Salah Marghani, for a further visit by Human Rights Watch on 4 March 2013.[59] It is now a matter for Human Rights Watch to arrange this visit at their earliest convenience.

49. Since 30 October 2012 each of the extensions of Saif Al-Islam Gaddafi’s periods of detention have been judicially approved by Tripoli based judges[60] who have travelled to Zintan to conduct a private hearing (ie. a closed session) on the extension of his remand period. These hearings have been facilitated by the local authorities in Zintan without any difficulties. The Libyan Government
understands that the reference on the remand extension documents to these hearings bearing held in public is an error as the hearings were held in closed session and were not open to members of the public.

50. The Libyan Government will shortly begin implementation of its recently devised proposal for the members of the Zintan brigade responsible for guarding Saif Al-Islam Gaddafi in Zintan to be trained and regularised so as to form part of the judicial police which would then guard him upon his transfer to a central government controlled prison in Tripoli. It is not possible to say with any certainty the exact date of Mr Gaddafi’s transfer to Tripoli but it is understood that this will occur before the earliest possible estimated commencement date of the trial in May 2013.

51.It is anticipated that if the national security proceedings, which are presently in the pre-trial phase and for which there was a public court hearing[61] in the Zintan court on 17 January 2013, are to proceed to trial that once Saif Al-Islam Gaddafi is transferred to Tripoli these proceedings will also be transferred to the Tripoli court.

The first thing to note is that, even if these claims are true, Libya is still currently “unable” to prosecute Saif within the meaning of Art. 17(3) of the Rome Statute, which provides that “[i]n order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” Libya admits that it has yet to obtain Saif — “efforts to arrange his transfer to a detention facility in Tripoli are ongoing.” And that failure is due to the unavailability of its national judicial system in Zintan, which is under the control of the militia holding Saif. Vague promises that Saif will be transferred to Tripoli before trial do not satisfy Art. 17(3).

Vague and unsubstantiated promises. I have left the footnote references in the text above to give readers a sense of just how weak Libya’s promise really is. Footnote 57, concerning Libya’s “ongoing efforts” to transfer Saif, references paragraph 99 in Libya’s 23 January 2013 submission, which provides in full:

The Libyan Government is able to confirm that Mr. Gaddafi remains in Zintan where he has been visited by both representatives of the International Committee of the Red Cross and Human Rights Watch on several occasions. Efforts to arrange Mr. Gaddafi’s transfer to a detention facility in Tripoli where other Gaddafi-era officials are presently held are still ongoing.

In other words, Libya is currently no closer to obtaining Saif than it was six weeks ago. And note that Libya’s January 23 submission itself provided no support whatsoever for its claim; Libya simply expected the Pre-Trial Chamber to trust that its “ongoing efforts” were making progress.

It is also telling that paragraph 50 of Libya’s most recent submission contains not a single footnote. It simply asserts, again without providing any support whatsoever, that Libya will “shortly begin implementation of its recently devised proposal” to train Zintan militia — apparently as part of some ostensible deal with the militia that Saif will be transferred if members of the militia can guard him. You would think that, if such a deal actually existed, Libya could provide a written statement to that effect by the militia. Indeed, in contrast to numerous other claims, Libya does not even provide an unsubstantiated statement from a government official testifying to the existence and content of the supposed deal.

Libya has managed to draw out its admissibility challenge for nearly nine months — nine months during which Saif Gaddafi has been languishing in a Zintan prison deprived of his right under both international and Libyan law to be represented by counsel. It is time for the Pre-Trial Chamber to reject that challenge once and for all. Libya is not currently able to prosecute Saif, and there is no evidence that it ever will be.

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