By Kareem Shaheen
Lawyers defending Moammar Gadhafi’s former intelligence chief have demanded Libya’s referral to the U.N. Security Council amid fears that his local trial would be a “sham” that leads to a swift death penalty conviction.
If granted, the measure could subject Libya to sanctions if it continues to deny lawyers access to Abdullah Senussi, its former chief of military intelligence, who is wanted, along with Gadhafi’s son Seif al-Islam, for crimes against humanity committed during Libya’s eight-month civil war.
The two are detained in Libya, which insists it can try them in local courts.
“These proposed trials will be nothing more than sham justice, the old-fashioned show trial, aimed at a conviction at breakneck speed without fair trial, followed by the summary execution of the death penalty,” Ben Emmerson, defense counsel for Senussi, told The Daily Star.
The ICC issued arrest warrants in June 2011 against Seif al-Islam and Senussi. At the time, Gadhafi battled NATO-backed rebels fighting to end over four decades of authoritarian rule.
Western powers backed the measure, but appear reluctant now to pressure Libya to hand them over to the court.
Libya challenged the ICC’s jurisdiction over the cases, but its efforts were dealt a major blow in May when the court ruled that it must extradite Seif al-Islam to The Hague.
Senussi, who fled to Mauritania in the wake of the uprising, was returned to Libya last September. The Libyan government reportedly paid $200 million for his extradition, a step that his lawyers condemned as bribery.
At the heart of the case lie concerns that Senussi would be quickly tried and executed as retribution for his alleged crimes as Libya’s former spy chief. The country’s prosecutor general said earlier this year that his trial would begin in August.
Emmerson said he had no faith in Libya’s judicial system, which “is in a state of complete disarray.”
“Irregular militia groups constantly threaten both the government and the judicial institutions,” he said. “The prisons are susceptible to the whim of militia groups.”
His assessment appeared to match that of the ICC judges, who said in a decision in May that Libya lacked the ability to try Gadhafi on its soil.
“The Libyan state continues to face substantial difficulties in exercising fully its judicial powers across the entire territory,” the court said.
Defense filings made public Monday demanded that Libya suspend its trial proceedings until the ICC has had a chance to rule on whether the country has the ability to try its former leaders fairly.
“The submissions by the defense, and many observers, throughout the proceedings that Libya is unwilling and unable to dispense genuine, secure and fair trials are being borne out,” Senussi’s lawyers said in the filing, a copy of which was seen by The Daily Star. “Judicial officers are being threatened and assassinated. Former Gadhafi regime members are being subjected to unfair trials and the death penalty.”
Amnesty International said earlier this month that Gadhafi-era officials were in danger of suffering what it called “revenge death sentences.”
The warning came after Ahmad Ibrahim, an education minister under Gadhafi, was sentenced to death in late July.
The referral to the Security Council would open up new avenues to force Libya to comply with the ICC’s rulings, through imposing sanctions or diplomatic pressure.
“The reality is they can’t stand by and see decisions by the ICC and the Security Council flouted and ignored by a rogue state, which is effectively what Libya is now becoming,” Emmerson said.
He said that in The Hague his client would have access to counsel, judges and witnesses free from political pressure, no death penalty and conditions that are sufficiently stable to hold a trial.
He said Libya repeatedly refused to issue visas or recognize the immunity of the defense lawyers while they were visiting Libya. He also said that Senussi may be suffering from liver cancer and does not have access to proper treatment.
Emmerson said the Libya case is a litmus test that will determine the credibility of the ICC and the Security Council’s commitment to international justice.
“If they don’t, then the credibility of the ICC as an institution is going to ebb away,” he said.
Efforts to bring Arab countries into the ICC’s fold have floundered, with few states ratifying the Rome Statute that established the court. They have also refused to comply with the court’s arrest warrant against Sudanese President Omar al-Bashir, who is wanted by the court for genocide, war crimes and crimes against humanity committed in Darfur.