On Monday and Tuesday this week, the International Criminal Court (ICC) held a hearing for Saif Al-Islam Gaddafi's challenge to the admissibility of his case before the court. Gaddafi junior is accused by the ICC of crimes against humanity during the revolt against his father's rule in 2011. Representing Libya's Government of National Accord (GNA), the UN-recognised government based in Tripoli, were Minister of Justice Mohamed Lamloum and legal expert Ahmed Al-Jahani.
The hearing centred around one question: should the ICC pursue the case against him or should it leave it to the Libyan judiciary? The court is not expected to return its ruling before March next year at the earliest. If it decides to pursue the case, then the ICC will again call on the Libyan authorities to hand over the accused.
The court, as well as thousands of Libyans, got an unexpected surprise when both Lamloum and Al-Jahani agreed that the case is indeed admissible before the ICC, giving the international court the green light to proceed with prosecuting Gaddafi. They also indicated that, in the GNA's opinion, he is now a fugitive despite the fact that he benefitted from the general amnesty law passed by the country's only elected legislature in 2015.
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However, handing over a Libyan citizen to a foreign court is illegal. Article 493 of Libya's criminal procedures law does not permit citizens to be extradited to stand trial before courts overseas unless it is done under bilateral agreements between Libya and the country involved, or specially agreed on arrangements. Furthermore, Saif Al-Islam Gaddafi was tried and sentenced to death in Libya in July 2015. A few months later, the Tobruk-based parliament passed Law no 6 — the general amnesty law — which granted amnesty to a host of crimes on certain conditions. Apparently, it applied to Gaddafi and in June 2017 he was released from jail in Zintan, western Libya, where he had spent six years since his capture in November 2011.
The GNA's position at the ICC hearing was thus a complete departure from all previous government positions on such matters. On 11 November 2014, Libya's representative to the UN announced before the Security Council that his country would not hand over Gaddafi because he would be tried in Libya. Responding to ICC Prosecutor General Fatou Bensouda, Ibrahim Debashi said that, "The Libyan authorities will provide a fair trial to Saif Al-Islam Gaddafi like all other defendants."
What the GNA's representatives said at the hearing at The Hague on Tuesday was interpreted by many Libyans as both a sell out and an insult to their country's judiciary. Khalid Al-Zayedi is Gaddafi's Libyan defence lawyer; he told me why the GNA had agreed to hand his client over to the ICC.
"They are selling out whatever remained of Libyan sovereignty," he explained. "The GNA is playing a game of revenge against my client."
Al-Zayedi's colleague and head of the five-strong defence team, Essa Faal, is an international law specialist from Gambia. He told me at the trial in The Hague that he was "surprised" at the GNA representatives' statement.
As the ICC's proceedings were streamed live on the court website, news of what happened inside the building soon reached Libyans waiting to hear what had been said. Even before the court hearing ended, there was a storm of protests on social media and local media outlets.
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Thousands of Libyans accused the GNA of insulting Libya's legal code and judiciary. Agreeing to hand over Gaddafi to the ICC means, among other things, that Libyan courts cannot handle his case. It also means that the GNA disregards the general amnesty law, decreed by the country's elected parliament, despite the fact that the parliament is the only elected body in the country and is a signatory of the Libyan Political Accord that created the GNA in December 2015.
"I have never seen a Minister of Justice disrespecting his own country's judiciary openly on such an international stage," wrote one critic on Facebook. Another compared the scene to what happened at the UN Security Council on 26 February 2011, at the start of the upheaval in Libya: "What just took place at the ICC is another [act of] treason exactly the same as the one staged by Abdel Rahman Shalgham at the UN."
Shalgham was Muammar Gaddafi's Ambassador to the UN who, at the time, had just defected to the rebels. He called on the Security Council to "save Libya" from what he described as inevitable bloodshed. That call provided some moral cover for the military intervention in Libya. NATO launched an eight-month air campaign fracturing the country, toppling the regime and helping to facilitate the murder of Gaddafi senior on 20 October 2011, driving Libya into lawlessness.
While the ICC considers its decision on whether to demand that Saif Al-Islam Gaddafi should be handed over, what the GNA did this week will further weaken whatever support it might still have among Libyans, particularly in western Libya. The main issue now is not what happens to Gaddafi junior, but the sovereignty and dignity of Libya and its judiciary. One Libyan observer at the ICC hearing spoke to me on condition of anonymity. "The GNA appears ready to hand over Libyans to whoever asks for them," he said. "Today it is Saif [Al-Islam] and tomorrow it could be anyone else."
Another legal expert living in Europe who also attended the hearing at The Hague, told me, "Why on earth would Libya's Minister of Justice attend the court in the first place? And how could he justify this move to thousands of judges and legal professionals in Libya?"
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There are those who think that there was something not quite right about what happened in The Hague. Sitting in the courtroom myself, I noticed that Ahmed Al-Jahani's written submission said that Gaddafi's case is "inadmissible" to the ICC. However, in his oral presentation, he said the opposite, creating confusion for all present. To clarify what the GNA's exact position is, the presiding judge asked him to explain the contradiction. Al-Jahani rose slowly, bent over the microphone and said, "It is admissible."
It is significant that the ICC's Bensouda appeared to pre-empt the Gaddafi hearing in her report to the UN Security Council on 5 November, just a week before the session at The Hague. Bensouda told the council that, "Irrespective of the current admissibility proceedings, Libya remains under an obligation to arrest and surrender Mr. Gaddafi to the ICC."
I asked Khalid Al-Zayedi what he thinks the ICC will decide. "It has already sold out… the ICC will decide to admit the case." It was, he concluded angrily, "yet another day of shame" for Libya.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.