ICC Prosecutor's Career Move Switches Horses and Legal Theories in Libya
The Troubling Case of Saif Gadhafi
by FRANKLIN LAMB
Despite the claims of the National Transitional Council of Libya (NTC) that Saif al Islam Gadhafi, the apprehended subject of an International Criminal Court arrest warrant that ordered his transport to The Hague, is in a secure hidden location near Zintan, Libya, a town approximately 85 miles southwest of Tripoli, this is not the case.
Neither are the assurances by Steven Anderson, spokesman for the International Committee of the Red Cross (ICRC) who on 11/23/11 announced that Saif al-Islam's injuries had been "taken care of," nor his profuse assurances that Saif is in good health. In point of fact, following the ICRC assurances, the Ukrainian-born Doctor Andrei Murakhovsky who lives in Zintan reported that "Saif's wound is covered with gangrenous tissue and necrotic tissue." He added that "This wound is not in good condition and requires amputation. His index finger has been ripped off at the level of the middle phalange (finger bone), the bones are all shattered. It's the same thing with the thumb of that hand." Dr. Murakhovsky told the Reuters news service.
The morning of 11/24/11, Libyan NTC Prime Minister Abdurrahim El-Keib still insisted that "Saif al-Islam is receiving the best possible treatment, but for now he is not in the hands of the provisional central government and we don't know where he is."
Regarding Saif al Islam's "secure and hidden location", most people in the village of Zintan know where he is being held, as does this observer who visited a motley group of B-western movie types who are currently guarding and "protecting" Saif.
Although armed with a Power of Attorney from one of Saif's family members to visit him, the group refused my request to visit Saif with the excuse that they had to consult their commander who was not expected to return for a few days since he was now the new NTC Libyan Defense Minister.
On the question of Saif's health, there is increasing concern also because his guards claim they cannot take him to Zintan's only hospital because someone would likely kill him in order to collect on the substantial rumored Qatar/NATO offered cash reward for whoever assassinates him thus presumably helping "the new Libya" and its allies avoid a messy trial.
Meanwhile, after what he claims in a change of heart, the International Criminal Court (ICC) Prosecutor, Luis Moreno-Ocampo, now professes that Libya, not The Hague, is the best place after all for Saif al Islam and his trial. Since its establishment by the United Nations in 2002, the ICC has had just one Prosecutor, Luis Moreno-Ocampo. To the reported expressed relief of many international defense lawyers, several ICC staff and ICC judges, plus legal commentators familiar with his prosecutorial work, the ICC will have his successor chosen next month in New York. This coming weekend in New York, the legal defense organization, Avocats Sans Frontiers (ASF, ie Lawyers Without Borders) will meet in order to try to agree on a successor to propose to the 18 ICC Judges who will decide.
Prosecutor Ocampo's visit this week to Libya caused some raised eyebrows among the groups noted above when he suddenly announced that the ICC would not invoke its UN Security Council-granted power and proceed with Case # ICC 01/11. This case was opened at the ICC on March 3, 2011, having been assigned to the ICC by the UN Security Council following the preceding month's uprising in Benghazi, Libya.
Speculation among some in The Hague, in Libya and from ASF lawyers is that knowing that he would not be re-elected for another term as ICC Prosecutor, due to among other reasons he has not won one case during his 9 year term, has repeatedly incurred the wrath of ICC judges for bringing cases which they ruled lacked sufficient evidence and his penchant for self-aggrandizing publicity and making inaccurate claims about cases and defendants that border on judicial misconduct, Ocampo decided to switch horses.
One egregious example of his making false representations is the current ICC case involving Saif al-Islam Gadhafi in which Ocampo made several inaccurate headline-grabbing statements over the past several weeks claiming to be negotiating "indirectly" with Saif al Islam to give himself up to the ICC. Saif has emphatically denied Ocampo's grandstanding claims and presumably, were Ocampo to attempt to personally prosecute his case Saif's legal team would immediately file a motion to replace Ocampo for cause, as provided by ICC rules.
Given these problems, Ocampo, according to someone who accompanied him during his visit this week to Libya, decided to accept a lucrative offer from the NTC to advise the oil-rich country on setting up a legal system to try Saif al Islam and others.
The assurances by Moreno-Ocampo, NATO officials and American UN Ambassador Susan Rice that Libya is currently fully capable of currently handling trials of former regime loyalists are nonsense. Rice exhibited ignorance and surprise here last weekend when she claimed not to know that Libya had the death penalty and would apply the death penalty in the ICC case if given the chance. The Libyan public's apparent preference is for the death penalty by hanging in the two Libya ICC cases. This was the case with Rwanda, which is one reason the Ruanda Tribunal did not allow the government of Rwanda to conduct certain trials even though that government assured the UN it would not actually carry out a death penalty sentence. Libya has offered no such assurances to the ICC against the use of the death penalty nor has it submitted a legal challenge to ICC jurisdiction over the Saif al Islam or Abdullah Sanussi cases, as the Rome Statute requires.
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