In November 2011, Seif al Islam, one of Muammar al Gaddafi’s sons, was captured in the Sahara desert and is currently imprisoned in Zintan, in the western part of Libya. The International Criminal Court (ICC) at The Hague had previously investigated the case and had issued an arrest warrant for Seif al Islam in June 2011 for crimes against humanity. This followed a February 26, 2011, UN Security Council Resolution (S/RES/1970 (2011)) that condemned the use of lethal force by Gadhafi and his sons against civilians and referred the situation to the ICC. Although Libya is not a signatory to the Rome Statute of the ICC, the resolution stated that the Security Council had decided that:
…the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.
However, the new Libyan government refused to transfer Seif al Islam to The Hague to be tried before the ICC following his capture. At that time, the Libyan authorities reportedly assured Luis Moreno-Ocampo, the outgoing ICC Chief Prosecutor, that Seif al Islam would receive a fair trial under the Libyan legal system.
There is an ongoing debate between the Libyan authorities and the ICC concerning which judicial entity should try Seif al Islam. In January 2012, the Libyan Minister of Justice, Ali Humaida Ashour, announced that the ICC had accepted Libya’s application for the trial of Seif al Islam to be carried out in Libya. The previous (interim) Minister of Justice had also expressed a similar understanding of the situation in November 2011. However, subsequent news reports indicated that the ICC had contradicted the statements of the ministers and had not agreed that the trial would be held in Libya instead of The Hague. Those reports stated that the ICC remains concerned about the lack of due process in Seif al Islam’s trial.
ICC rules indicate that a state can try suspects that it holds only if it can demonstrate that it will provide a fair trial. The Public Counsel for the Defence at the ICC said that Libya may have violated the ICC rules by denying Seif al Islam access to a lawyer and not allowing him to contact his family. Despite the ICC’s concerns, the Libyan government insists that it will provide Seif al Islam with a fair trial. The Libyan President, Mustafa Abdul Jali, declared that the trial procedures will commence once a new detention facility and courtroom is ready, saying “By God’s will, Saif al-Islam Qaddafi will receive a fair trial.”
Most recently, on April 4, 2012, it was reported that the the ICC had ordered the Libyan government to surrender Seif al Islam to the court’s custody. However, the spokesperson for the Libyan authorities said that the plan to try Seif el Islam on Libyan soil remained unchanged. In fact, in the last few days it was reported that the trial may commence in the very near future in Libya.
Libya’s criminal laws and justice system have not been substantially changed following the fall of the Gaddafi regime. As noted above, the Libyan authorities have stated that a special fortified courtroom is being built in Tripoli to host the trial of Seif al Islam. In terms of the procedural aspects, a criminal circuit court of the Libyan Court of Appeal may have jurisdiction over the trial. Such courts consist of three judges: a chief justice and two assistants. There are three Courts of Appeal across Libya, located in Tripoli (West), Benghazi (East), and Sabha (South). Seif al Islam’s trial may therefore take place within the ambit of the Court of Appeal of Tripoli.
It will also be interesting to see which provisions of the Penal Code Seif al Islam will be charged under. It appears that the charges against Seif al Islam may include at least two types of crimes: 1) murder, and 2) financial corruption. Concerning the murder charges, he could face the death penalty if he is convicted under articles 296 and 368 of the Penal Code. Article 296 provides that any individual who jeopardizes the safety of the state by committing violent acts causing the death of more than one person can be sentenced to death. Likewise, death is included as a penalty under article 368 if Seif al Islam is found guilty of deliberately killing rebels.
It also appears that Seif al Islam may be charged with offenses related to financial corruption committed by public officials. These offenses include the following: article 226 on bribery; article 230 on the embezzlement of public funds; article 231 on the abuse of power for illicit gain; article 233 on using a public position to achieve a private interest; and article 234 on the abuse of power to damage the state’s interest. If Seif al Islam is convicted of any of these crimes, he may face the penalty of imprisonment.
Assuming the trial goes ahead as planned by the Libyan authorities, it will be a key test of the justice system in Libya under the new government and will be carefully watched by international organizations, particularly the ICC, and countries around the world.
The Law Library of Congress has a number of resources relating to Libyan law, including reference materials on the subjects of the Penal Code, Law of Criminal Procedures, Islamic law, and press crimes and freedom of expression.