Legal process, and other distractions

2014_Libya_Saif (1)I oppose the death penalty.

As a result, this was never likely to be a celebratory blog.

In the event, it is a deeply critical one.

Yesterday (29 July 2015), a court in Tripoli, Libya sentenced to death nine former officials of Muammar Ghaddafi’s regime, including his son Saif Al-Islam, former intelligence chief Abdullah Al-Senussi, foreign intelligence gatherer Abu-Zeid Omar-Dawarda, and the dictator’s last Prime Minister Al-Baghdadi Ali al-Mahmoudi.

The sentence is to be carried out by firing squad.

The background to the case is dealt with in some detail in the chapter Libya’s Future and Libya’s Past, in my book The Toss of a Coin: voices from a modern crisis (release imminent).

But in brief, Saif and his 38 fellow defendants were accused of a number of crimes relating to their behaviour during Muammar Ghaddafi’s rule, and in defence of the dictator during the first Libyan Civil War.

There is little doubt of the responsibility of some defendants for some outrageous acts. Senussi, for example, has already been convicted in absentia for the bombing of a French airliner over Niger in 1989, which killed 170 people. In Libya, he is believed to have been responsible for the massacre of 1,200 prisoners at Abu Slim jail, Tripoli, in 1996.

But the point of a court case is for justice to be done – and to be seen to be done. And this trial certainly fell short on the second criterion, and quite probably on the first.

First of all, one must question whether a trial can realistically deliver justice against the background of a state in which two powerless, illegitimate governments are squabbling for political control, and which is being torn to pieces by a four-way civil war.

This ‘trial’ (such as it was) took place in Tripoli, which is Libya’s state capital but also the base of the GNC, one of the two governments which has never gained legitimacy even on its own terms, and occupied by the Libya Fajr (Dawn) militia organisation, an illegal armed group.

Secondly, as noted in The Toss of a Coin, the state filed more than 40,000 pages of evidence relating to the 39 defendants – yet in the words of the representative of the United Nations Special Mission in Libya (UNSMIL) ‘the prosecution presented its case in less than one hour, without calling any witnesses.’

In fairness to the prosecution, it may have been genuinely incapable of calling any witnesses, though only because – according to Saif al-Islam’s lawyer John Jones, who was appointed to represent him by the International Criminal Court – ‘The prosecutors are relying on confessions from defendants extracted by torture.’

In the case of Senussi, serious concerns have already been raised about the trial. Last year – the last time the court met regarding the case – it emerged that his defence lawyer Amal Alamuddin had been appointed only five days before the case began, and he had never met her.

Equally, the charges against him included some which appear at a first glance to be extremely difficult to prove, including claims he ordered pro-Ghaddafi soldiers to rape female opponents of the regime. Not only was this charge identical to claims levelled against Muammar Ghaddafi (raising questions about who actually ‘ordered’ such attacks) the specific claims of rape were admitted by NATO to have been based on ‘hearsay’ and as yet no evidence has actually been presented to the court that any ‘mass rapes’ were even ordered, let alone carried out.

This is not to suggest that Senussi was a good man. But as Dostoyevsky stated: ‘You can judge a society by how it treats its prisoners.’ The case of Senussi, who has been sentenced to death by firing squad under circumstances which would – and should – cause outrage almost everywhere, does not invite positive conclusions about modern Libya, no matter how ‘deserved’ his guilty verdict may be.

But at least Libya had the legal ‘right’ to judge Senussi (though arguably controversially: he had originally been charged by the International Criminal Court, which does not allow the death penalty. But ICC chief prosecutor Fatou Bensouda ruled that there was ‘no evidence’ his case had been affected by the occupation of Tripoli by illegal militias who had recently won a war against him).

In the case of Saif al-Islam, even that legal right was missing. The ICC ruled last year that he must stand trial at The Hague, not least because the charges levelled against him in Libya are different from those he is charged with by the international court.

And those charges (discussed within the course of the same single hour by the prosecution) included a number of incompletely evidenced claims.

The court was told Ghaddafi had ‘recruited mercenaries’, yet this claim – levelled at his father during the war – had previously been used as shorthand for ‘black Libyans fought for Ghaddafi’.

It was asked to accept that Saif al-Islam had attacked Libyan towns and cities from the air – but Ghaddafi’s forces, unlike NATO, had respected the UN’s no-fly zone rules.

Like Senussi, he was also accused of incitement to rape – but that accusation suffers from the same nagging inconsistencies as the one levelled at Senussi.

Also like Senussi, however, it is extremely that Saif al-Islam has committed some terrible acts – as part of his father’s regime, and quite possibly during the first Libyan Civil War

But unlike Senussi, he was not even present in court, instead being sentenced in absentia because he is currently being held prisoner by the Zintan khetiba (a militia in the west of Libya which has opposed Al Fajr and the GNC, fighting them on behalf of Libya’s other – equally illegitimate – Parliament, the HoR, in unity with the Operation Dignity illegal armed force. It was the Zintan khetiba’s attack on the Libyan parliament last Spring – in tandem with Operation Dignity’s attack on Benghazi – which started the second Libyan Civil War).

Video links had been set up, but were not working, meaning that Said al-Islam was convicted on the grounds of a series of unproven allegations and a one-hour prosecution case presentation, by a court which had no legal right to try him, and which he was prevented even from attending.

And he and eight others (six of the defendants were sentenced to life imprisonment, 20 received smaller prison sentences, and four were cleared) are set to be shot by firing squad.

All the convicted are entitled to appeal, but as Saif al-Islam was unable even to attend the trial at which he was sentenced to being shot dead, it is hard to see how such a thing can even take place in his case. And there is little to suggest an appeal hearing will be any more reassuringly run.

All in all, this has not been a great day for Libyan justice.

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