No Saif Harbor

If the latest media reports are to be believed, Muammar al-Qaddafi’s most famous son and one-time heir, Saif al-Islam, is thinking about surrendering himself to the International Criminal Court (ICC). In June, the court charged him, alongside his now-deceased father and Libya’s intelligence chief, with war crimes and crimes against humanity. Most accounts now place Saif somewhere in southern Libya or Niger, negotiating with the international court through intermediaries. It’s not clear how serious those negotiations are, but a man who’s just been bombed by NATO, had his father executed, and fled across the desert, may well find a comfortable cell in a quiet Dutch suburb increasingly attractive.

If Saif does manage to get himself to The Hague, he would instantly become the young court’s most famous prisoner. The ICC, which opened its doors in 2002, has struggled to get hold of its most prominent targets, including Sudanese president Omar al-Bashir and Lord’s Resistance Army commander Joseph Kony. So a 39-year old jet-setter who once wrote a London School of Economics (LSE) dissertation on global governance could become a key test case for an international court still trying to prove itself.   

For the court, turning precious custody into an actual conviction will not be simple, however. The ICC’s own rules and the weirdness of the Qaddafi regime could haunt international prosecutors.

The prosecution’s first task would be simply holding onto its prize catch. Libya’s new authorities would likely bid to get him back, and the court’s statute gives them that right. The ICC is designed to complement, not supplant, national court systems. A Libyan spokesman recently insisted that Saif should face justice at home. "We will not accept that our sovereignty be violated like that," he said. "We will put him on trial here."

If Libya does launch a domestic case against Saif, the international court first would have to determine that the country’s new authorities aren’t able or willing to hold a genuine proceeding. The judges would have plenty of evidence to draw on; the execution of Col. Qaddafi at the hands of his captors does not instill great confidence in Libyan justice. By most accounts, the decades of Qaddafi rule left the country without even basic institutions. But the international judges at the The Hague may also hesitate to publicly damn the new government by declaring it incapable of administering justice.

If the ICC does insist that Saif remain in The Hague, the key legal question will be what authority he had in Libya during the key weeks in February and March when the government chose to crush the protest movement. Muammar Qaddafi’s conceit was that Libya was actually ruled by the masses, a self-styled political philosophy called jamahiriya, and neither he nor his son held a formal government post. Saif himself led a peripatetic, quasi-official existence. A trained architect fluent in several languages, he also headed up a charity foundation, studied for several years at LSE, hobnobbed with British elites, and cared for pet tigers. He sometimes negotiated on behalf of his father, but he also criticized the regime’s policies and, in 2008, even publicly renounced politics. Outside of Libya, he was widely perceived to be a voice for reform. LSE political theorist David Held once described Saif as "someone who looks to democracy, civil society and deep liberal values for the core of his inspiration."   

In granting the arrest warrant, the court’s judges grappled with the muddiness of Saif’s role in the regime. "There are reasonable grounds," they wrote, "to believe that Saif Al-Islam Qaddafi, although not having an official position, is Muammar Qaddafi’s unspoken successor and the most influential person within his inner circle and … exercised control over crucial parts of the State apparatus, including finances and logistics and had the powers of a de facto Prime Minister." Damning as those words are, they leave plenty of room for Saif’s legal team to work: the court can issue arrest warrants with "reasonable" evidence, after all, but much more is required to convict. And the fact that so much about the Qaddafi regime was "unspoken" and "de facto" could make constructing a paper trail devilishly difficult.  

The death of the lead defendant in the case may also complicate the prosecution’s strategy. The arrest warrants focused heavily on the role of his father, who is described as having "absolute, ultimate, and unquestioned control of the Libyan State apparatus of power." With the senior Qaddafi now gone, prosecutors may have trouble introducing certain evidence that relies heavily on actions by him, notes James Goldston, executive director of the Open Society Justice Initiative and a former federal prosecutor. And David Kaye of UCLA’s Human Rights Center is skeptical that the court will be able to simply hang the sins of the father around Saif’s neck. "At the end of the day, it’s his trial, not his father’s trial," says Kaye.

Though he was widely seen as heir to his father’s power, Saif held no formal leadership position, no military rank, and no government title. As the conflict developed, however, he often appeared to be the public face of the regime. "Even just through his public statements in the early days of the revolution, it would appear that Saif put himself at the center of responsibility," said Paul Seils, vice president of the International Center for Transitional Justice and a former ICC prosecution official. Law professor Kevin Jon Heller believes the prosecution may be able to convince the judges that the younger Qaddafi instigated or solicited crimes on behalf of the regime even without formal control. "The assistance does not have to be material; psychological encouragement that makes the commission of the crime more likely is sufficient," Heller says. 

Many observers, including ICC prosecutor Luis Moreno-Ocampo, believe that Saif’s Feb. 20 interview on national television had just such a catalyzing effect. On air, Qaddafi pledged, "we will fight to the last man, woman, and bullet" and warned of "rivers of blood." At another point, Saif apparently promised a crowd of supporters that he would provide weapons. But Saif’s often rambling and ambiguous public statements may not be enough on their own to put him behind bars.

The prosecution will be on much firmer ground if it can demonstrate that Saif was in effective command of some of the regime’s forces. A commander who knows about abuses and does not stop them can be criminally liable, even if he did not explicitly order the abuses. But how much did Saif actually know about what government forces were doing? In a February interview with ABC’s Christiane Amanpour, Saif emphatically denied that the regime was carrying out attacks on civilians. "Show me a single attack," he demanded. "Show me a single bomb. Show me a single casualty. The Libyan air force destroyed just the ammunition sites." Saif may claim at trial that nobody ever told him about abuses, and it will be up to the prosecutors to demonstrate otherwise.

They may well have the goods to do so. ICC prosecutors apparently have dozens of text messages sent by senior Libyan officials, which could help give the lie to Saif’s claims of ignorance. Testimony from former regime insiders, who could testify to Saif giving specific orders or receiving briefings, would also bolster the prosecution case. As James Goldston points out, the collapse of the Qaddafi regime will make soliciting insider testimony much easier than in the case of Sudan, where indictee Omar al-Bashir remains firmly in control.

At the ICC, Saif’s fate would be in the hands of professional judges, not a jury. And what would prevent him from seeking to turn what will undoubtedly be a drawn-out trial into an exposé of Western hypocrisy and double standards? He has already embarrassed Western power brokers on several occasions. After he helped negotiate the release of Lockerbie bomber Ali Mohmed al Megrahi, Saif said on camera that Megrahi’s case had been on the agenda whenever Libya negotiated oil deals with Western governments and companies. The comments sparked a furor in Britain and Scotland, where senior politicians were forced to deny any quid pro quo with the regime.

Taking a page out of former Serbian president Slobodan Milosevic’s book, the 39-year-old Qaddafi may also attack the court itself as illegitimate. Here his LSE dissertation could come in handy. In the more than 400 pages of that opus — sections of which were allegedly plagiarized — he argued that key international institutions including the World Trade Organization and International Monetary Fund lack legitimacy because they are under the thumb of major powers. What better evidence than the fact that the ICC could only investigate Libya when the powerful U.N. Security Council gave it the green light?   

Those kind of arguments won’t cut much ice with the court’s judges. But combined with any holes in the prosecution’s case, they could turn what would be the ICC’s most closely watched trial into a genuine contest. As former ICC official Paul Seils said of high-profile war crimes trials, "It’s always wise to expect the unexpected."