Six years after his capture during the Arab Spring uprising against his father Muammar Gaddafi, and despite pending charges in the International Criminal Court, Saif al Islam Gaddafi has been set free by his captors, a western-Libyan militia known as the Abu Bakir Siddiq Brigade. Although he had no official position in the administration of his dictator father, Saif Gaddafi was influential and expected to succeed his father as Libya’s leader. Whether he will mount a campaign to return to power is yet to be seen, but his newfound freedom is sure to make his political opponents anxious. His release also poses a challenge to the United Nations and the International Criminal Court (ICC), which have sought his extradition to face ICC charges, and undermines the potential of the international criminal justice system to help bring peace to the country.
Saif Gaddafi’s release, which took place under the General Amnesty Law passed by the House of Representatives – a body unrecognized by the international community – reflects the power vacuum left in the wake of his father’s toppling. According to this law, perpetrators of torture, terrorism, corruption, rape, and ethnically-motivated murder are not covered by the amnesty, but its stipulations for forced displacement, kidnapping or forced disappearance, and extrajudicial killings are opaque. The Office of the General Prosecutor in Tripoli released a statement last week clarifying that the General Amnesty did not protect Saif Gaddafi. Yet the lack of a unified, central government and ensuing disarray in the country’s political system means that Saif Gaddafi’s fate remains unpredictable as does Libya’s political future. For example, an Islamist assembly that is also based in Tripoli and calling itself the Government of National Salvation has been challenging the authority of the weak but UN-backed Government of National Accord and seeking its overthrow while another rival faction, the House of Representatives, operates from the eastern city of Tobruk. The GNA has been unable to establish order, consolidate the rule of law, and build democratic institutions. Moreover, since the revolution began, Libya has become a hotbed of violent extremism and despite international efforts to defeat ISIS, the group continues to operate in the country. In March of this year, the Pentagon’s head of Africa Command warned, “The instability in Libya and North Africa may be the most significant near-term threat to U.S. and allies’ interests on the continent.”
In 2015, the Court of Assize in Tripoli sentenced the younger Gaddafi to death in absentia for his role in the killing and torture of civilians during the revolution. His captors in Zintan refused to comply with the order to hand him over, claiming they did not trust the authority and capacity of the court. The UN also cast doubt on the Tripoli trials, instead advocating for Gaddafi to face international criminal justice processes. (A UN report released in February concluded that the trials failed to meet international standards of due process and were motivated by vengeance.) The UN called for the central government to recover Gaddafi from the rebel held territory and transfer him to The Hague to face charges of murder and persecution.
Those charges date back to 2011, when the UN Security Council passed Resolutions 1970 and 1973, which, in addition to imposing a no-fly zone, authorizing sanctions, and paving the way for a multilateral military intervention, referred Muammar and Saif Gaddafi and other top officials to the ICC. Soon after, Luis Moreno Ocampo, who headed the ICC’s Office of the Prosecutor, formally opened an investigation and issued a warrant for Saif Gaddafi’s arrest in June 2011. A preliminary investigation cited his role in abetting violence and repression and identified him as a “de facto Prime Minister” with considerable influence over the State’s security forces. In 2012, the transitional government in Libya challenged the jurisdiction of the ICC and the admissibility of the case against Saif Gaddafi but the court argued that it was operating in accordance with the principle of complementarity. After the Abu Bakir Siddiq Brigade announced Saif Gaddafi’s release, the ICC renewed its call for his immediate arrest but it is unlikely that the Libyan authorities will be able or willing to follow through. Without him in custody, the ICC case remains in pre-trial proceedings.
The prosecutor’s intervention in Libya brought into focus the underexplored question of the ICC’s role in ending conflicts and building peace. As a permanent institution tasked with ensuring accountability for mass atrocities, the ICC may not – at first glance – appear to have any role to play in bringing civil wars to a close and ushering in stability but, in reality, it is an important international actor with a looming shadow. Skeptics argue that internationally led accountability efforts against alleged war criminals risk heightening instability in already volatile contexts. They say that justice should take a back seat to peace. Critics also question the legitimacy and credibility of the ICC, seeing it as a Western invention that disproportionately targets human rights abusers in the Global South.
Proponents of the international criminal justice system argue that, although far from perfect, the court has an indispensable role to play in ending impunity for the most odious violations of human rights and, in doing so, deterring future abuses. Its capacity to bring peace was on show during the Havana peace process to end the protracted conflict between the Government of Colombia and the FARC, where it played a critical role in reviewing measures related to accountability for killings, torture, forced disappearances, and sexual violence in the final peace accords.
Gaddafi’s release reignites pressure on the ICC to follow through on its pursuit of him, at a time when the court is already under significant pressure due to a number of African states announcing their intention to withdraw from the Rome Statute. If Saif Gaddafi ascends to a position of political leadership, it would serve as an additional embarrassment for the ICC and confirm its limited reach. The ICC should redouble its efforts to gain custody of Gaddafi by working with the UN and the GNA. Despite the political chaos and insecurity that complicates the ICC’s ability to operate effectively in accordance with Resolutions 1970 and 1973, the court’s role remains crucial to ending impunity for atrocities that have been committed and continue to go unpunished in Libya. The GNA should confirm Gaddafi’s release, identify his whereabouts, and transfer him to The Hague as efficiently as possible. Doing so would help prevent Gaddafi from making a political comeback and bolster the GNA’s international legitimacy and credibility.
What Saif Gaddafi will try to do next could matter a great deal for order, democracy, and justice. At this time, it is unclear whether his supposed release will serve as a boon to Gaddafi loyalists and the extent to which they will seek to rally around the former heir apparent. Although his immediate location remains a secret, Saif Gaddafi’s lawyer claimed that his client would soon address the people of Libya and “have a major role in bringing peace” to the country. The chaotic political landscape, lack of a strong and unified state, and the country’s porous borders leaves Libya vulnerable to continued instability. All the while, civilians continue to suffer the consequences of a prolonged humanitarian disaster and many that still remain are desperate to leave the country in search of safety and prosperity elsewhere.
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