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This question has been one of the chief controversies whirling around the Libyan situation ever since Saif al-Islam Qaddafi was captured and his father killed in the final days of the Mummar Qaddafi regime. Saif al-Islam Qaddafi was the child politically closest to the father and was being groomed as his successor. He was Mummar Qaddafi's second in command and is believed to have run the day-to-day operations of the regime both before and during the revolutionary struggle. With Mummar Qaddafi dead, he becomes the highest official from the Qaddafi regime that can be held to accounts.

He was captured by the Zintan Brigade in the last days of the falling regime and has been held by them ever since. Since the circumstances of his father's death are still unclear and there is good reason to believe he was murdered while in custody, many have feared for Saif's safety in the hands of one of Libya's many revolutionary brigades, however he has been held now for 5 months while waiting trial in Libya and is reportedly still in good health.

The International Criminal Court has also brought charges against Saif Qaddafi the they have insisted that he be transferred to the Hague for trial by the ICC. They have argued, as have the many critics of the Libyan revolution and the National Transitional Council, that Saif al-Islam Qaddafi simply can't get a fair trial in Libya. They argue, as in the LA Times article I cliqued yesterday that Libya [is] now ruled by the law of retribution and must be transferred to the Hague immediately to insure both his safety and a fair trial.

This struggle over Saif al-Islam Qaddafi between the Libyans and the ICC has been a very public one with the Zintan brigade adamantly hanging on to their catch, reluctant even to hand him over the Libyan government and the Libyan government adamantly demanding that he be tried in Libya ahead of any international tribunal.

While the US government, which itself doesn't recognize the authority of the ICC, has come out in support of the Libyan position and even the ICC has been forced to admit that by its own guidelines the national courts take precedence, most commentators in the Main Stream Media and co-incidentally among the anti-interventionists turned counter-revolutionaries, has been that because of the chaos in Libya, because many are seeking revenge, for his own safety, Saif Qaddafi should be transfered to the Hague ASAP.

This whole controversy came to ahead last week after Libyan authorities detained four of the ICC staff meeting with Saif Qaddafi. According to Reuters:

A four-member ICC delegation has been detained in the western mountain town of Zintan after one of its lawyers, Australian Melinda Taylor, was found to be carrying documents regarded as suspicious, for Saif al-Islam Gaddafi, a Libyan lawyer and a militia said on Saturday.

"The order has been given to put them in detention for 45 days," Taha Baara of the prosecutor-general's office said.

Libyan officials say Taylor and her female interpreter, as well as two male colleagues, are being held in a guesthouse in Zintan. An ICC team arrived in Tripoli on Sunday to try to secure their release.

The Reuthers piece also gives the specific reason they were detained:
A Libyan lawyer said the suspicious documents included letters from Saif al-Islam's former right-hand man Mohammed Ismail, as well as blank documents signed by the prisoner.
Now, if you have been following the news around this case even loosely, so far I haven't told you anything that you don't already know, and that's not why I wrote this dairy. I wrote this dairy because this morning I heard an interview with one of the leaders of the Zintan Bridage that is holding Saif Qaddafi. He spoke about why they are unwilling to give up their prize and he gave reasons that were new to me because they have not been raised either by the MSM or the anti-interventionists turned counter-revolutionaries in their extensive commentaries on this controversy.

They have serious fears about the safety of Saif al-Islam Qaddafi if he is transferred either to the NTC or the ICC:

"If we transfer Saif al-Islam out of Zintan, I am certain that he will be smuggled. Some want to sneak him out of the country and others want him killed. There are elements within the NTC that were involved in things to which Saif is the only witness so its in their interest to have him killed. There are also foreign elements from Britain and France with ties to the old regime and Saif is the only witness against them."
This is a view of the problem that I haven't seen considered before, either by the MSM or by the anti-interventionists turned counter-revolutionaries, and that is the reason for this diary.

When Saif al-Islam released the info about the Qaddafi campaign contributions to Sarkozy's campaign for the French presidency, that could have been a meant as a warning shot across the bow of all the imperialists outside of Libya and all the Qaddafi collaborators still in positions of power that they can't afford to have him stand trial in an open court in Libya.

So we must seriously consider how much of the hue and cry about getting Saif Qaddafi out of the hands of the Zintan Brigade and transfered to the Hague "for his safety", is based on justified concern for one Libyan dictator's son or a deep desire for "proper" international justice, and how much is motivated by a desire to keep imperial connections to the Libyan regime secret.

We must also consider whose interests the "left" commentators, anti-interventionists turned counter-revolutionaries, serve when they echo the demand that Saif Qaddafi be turned over to the ICC.  

For more background on the Libyan Revolution and links to lots of information see my other writings at the DailyKos and WikiLeaks Central:
MSM plays Hankey Panky with Libya
Qaddafi lies live on after him
Another "Houla style" massacre in Syria
Libya's Qaddafi helped US & Israel against Iran in Olympic GamesWhy is Russia demanding NATO boots on the ground in Libya?
#LyElect Libyans register to vote 1st time in 60 years
Libya's Revolution: How We Won - The Internationale in the 21st Century
Good News from Libya
On Libya & Glenn Greenwald: Are the anti-interventionists becoming counter-revolutionaries?
UN: NATO killed 60 civilians in Libya
Libya in the news today
Amnesty International on Libya again
The Current Situation in Libya
Democracy Now & Amy Goodman gets it wrong again.
Why is Chris Hedges calling for "boots on the ground" in Libya?
The Worm Has Turned: Good Film on Libyan Revolution from PressTV
Why NATO's mission in Libya isn't over yet
Libya's Freedom Fighters: How They Won
Racism in Libya
Abdul Rahman Gave his Eyes to See the End of Qaddafi
BREAKING: Secret files reveal Dennis Kucinich talks with Qaddafi Regime
BREAKING: Libyan TNC won't extradite Lockerbie bomber
Who really beat Qaddafi?
#Feb17: @NATO Please help MEDEVAC wounded from #Libya
What should those that opposed NATO's intervention in Libya demand now?
BREAKING: Qaddafi's Tripoli Compound Falls!
Does PDA Support Qaddafi?
BREAKING: Operation Mermaid Dawn, the Battle to Liberate Tripoli is Joined
Helter Skelter: Qaddafi's African Adventure
Qaddafi's Long Arm
SCOOP: My Lai or Qaddafi Lie? More on the 85 Civilians presumed killed by NATO
Did NATO kill 85 Libyan Villagers As Qaddafi Regime Contends?
CCDS Statement on Libya - a Critique
The Assassination of General Abdul Fattah Younis
NATO over Tripoli - Air Strikes in the Age of Twitter
How Many Libyans has NATO Killed?
Qaddafi Terror Files Start to Trickle Out!
Have Libyan Rebels Committed Human Rights Abuses?
Tripoli Green Square Reality Check
Behind the Green Curtain: Libya Today
Gilbert Achcar on the Libyan situation and the Left
NATO slammed for Libya civilian deaths NOT!
2011-07-01 Qaddafi's Million Man March
NATO's Game Plan in Libya
February 21st - Tripoli's Long Night
Did Qaddafi Bomb Peaceful Protesters?
Tripoli Burn Notice
Libyans, Palestinians & Israelis
'Brother' Qaddafi Indicted plus Libya & Syria: Dueling Rally Photofinishs
An Open Letter to ANSWER
ANSWER answers me
2011-06-22 No Libyans allowed at ANSWER Libya Forum
Are they throwing babies out of incubators yet?
Continuing Discussion with a Gaddafi Supporter
Boston Globe oped supports Gaddafi with fraudulent journalism
2011-04-13 Doha summit supports Libyan rebels
Current Events in Libya
Amonpour Plays Softball with Gaddafi
Arming Gaddfi
North African Revolution Continues
Is Libya Next? Anonymous Debates New Operation
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Comment Preferences

  •  Tip Jar (7+ / 0-)

    Remember history, Clay Claiborne, Director Vietnam: American Holocaust - narrated by Martin Sheen

    by Clay Claiborne on Mon Jun 11, 2012 at 11:49:53 AM PDT

  •  My personal preference would (4+ / 0-)
    Recommended by:
    gchaucer2, nextstep, VClib, dougymi

    be for him to be tried by the ICC.  However, the rules of the Court, in fact one of the basic underpinnings of the foundation of the Prosecutor's function, is the principle of Complementarity -- that the Prosecutor of the ICC shall only initiate a prosecution if the home country in unable or unwilling to do so.  This is an important principle because it underlies the limited responsibility of the Prosecutor, and acts as a check on he or she executing his or her powers in a political manner.   Also, the fact that the principle underlies the office is a strong argument against those who oppose the US becomming a part of the Court.  

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Mon Jun 11, 2012 at 11:57:00 AM PDT

  •  in a shallow grave, if the rumors about his (0+ / 0-)

    violence and torture are even slightly true.

    What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

    by agnostic on Mon Jun 11, 2012 at 11:57:34 AM PDT

  •  What is the status of (2+ / 0-)

    the judicial system in Libya at this point?  Is there Constitution ratified?  I regret that the last time I paid close attention to the potential Constitution was at the end of the civil war major.  These factors are critical in determining where Saif is tried.  Not that I really give a shite about that murdering bastard -- but I do care about the law.

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Mon Jun 11, 2012 at 12:01:18 PM PDT

    •  I don't think the judicial system in Libya is (1+ / 0-)
      Recommended by:

      ready for the Saif trial at this time. This trial must be conducted by the legal government of the country and not a local militia in order to have legitimacy.

      The Zintan brigade is insisting that it be held under their jurisdiction because of their distrust of the NTC - "the revolution has been stolen", "we trusted them to build an army, to restore security and to achieve prosperity in Libya. But they did nothing."

      I don't think the NTC, which is the current recognized government of Libya has the power to control or police the Zintan brigades.

      judicial system in Libya at this point?
      Governance and the Rule of Law

      Lack of transparency in the decision-making processes of the NTC and the transitional government is a common grievance of Libyans, both at the professional level and the grassroots level. This grievance has manifested itself in an inability of the transitional government to establish a legitimate authority with the population and, as a result, the government has been unable to undertake key actions, such as disarmament, effectively.

      Further, Libya has inherited a weakened judicial system, and one that does not have the trust of the people, as a result of the Gaddafi regime’s marginalisation and systematic stripping of the judiciary’s independence. For Libya to complete the transition to a democratic state governed by the rule of law, it is vital that the judiciary is enshrined as an independent and separate branch of government and one that serves as a true check on the legislative and executive branches of government.

      LFJL’s Governance and Rule of Law Programme promotes the principles of transparency and accountability in all branches of government and calls for and end to the revolutionary legitimacy on which the NTC and government have thus far relied and instead calls for legitimacy to be drawn from the rule of law. LFJL sees the role of the judiciary as key in this process.

  •  It's a tricky question, and there (1+ / 0-)
    Recommended by:

    are compelling arguments on both sides.

    Quite clearly:

    1)  Having a militia hold him is not a tenable, long-term solution; and

    2)  any satisfactory resolution will minimize the prospects of both escape and assassination.

    The big question is at what point does Libya's government attain sufficient legitimacy to warrant displacing any ICC jurisdiction over this guy.   I think most would agree that those who were subjected to the regime's abuses are most entitled to seek and enforce justice.  Saif Qadaffi's (alleged, technically) crimes were not against Germany or Bolivia.  They were against the people of Libya.

    On the other hand, a group holding power by force cannot be said to represent the people of Libya.


    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Mon Jun 11, 2012 at 12:10:19 PM PDT

    •  "a group holding power by force" (1+ / 0-)
      Recommended by:

      can well be said to represent the people of Libya when it is composed of hundreds of citizens groups that they have recently organized and armed themselves for the purpose of overthrowing a dictator. Who better?

      Did you consider that the Qaddafi regime represented the Libyan people? How about the US government? Do you consider all groups holding power by force to be non-representative?

      Ditto your opinion on "sufficient legitimacy." Who is to be the judge? Did that include the Qaddafi regime? The Bush regime?

      Remember history, Clay Claiborne, Director Vietnam: American Holocaust - narrated by Martin Sheen

      by Clay Claiborne on Mon Jun 11, 2012 at 12:30:28 PM PDT

      [ Parent ]

      •  I guess what I was referring to (0+ / 0-)

        was the prospect of a single tribe or militia or sect rising to power in a newly emerged government (e.g. Alawites in Syria), once it has consolidated power.

        The coalition that overthrew Qadaffi certainly has legitimacy, but they aren't quite there yet in terms of being a sole sovereign capable of exercising authority (see the airport fiasco from the other day).  

        My strong preference would be for Saif Qadaffi to be judged by Libyans, not by bureaucrats from another continent.

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Mon Jun 11, 2012 at 12:44:50 PM PDT

        [ Parent ]

  •  Who is in charge in Libya. The NTC or the Zintan (2+ / 0-)
    Recommended by:
    dougymi, protectspice


    Zintan: Arrested ICC lawyers “moved to jail”

    Tripoli, 11 June

    The four man ICC legal team detained in Zintan on a visit to Saif Qaddafi has been transferred from house arrest to a prison in the town and will be held for 45 days while investigations into their conduct continue, according to the militia chief who detained them.
    Atiri told the BBC that the transfer to a jail had been made on orders from the Attorney General’s office and the Defence Ministry in Tripoli. This sits oddly with an earlier statement from the brigade commander, that even after several ‘phone calls from NTC chairman Mustafa Abdul Jalil, he had refused to release the lawyers.

    It is obvious there is no attorney–client privilege in Libyan law. Here's a report by The Tripoli Post:
    The Full Story Behind the Arrest of ICC Four-member Team in Libya

    Zintan-- A team of four people allegedly working for the International Criminal Court (ICC) travels to Zintan city in Libya. The team is allowed by Libyan authorities to meet Seif Gaddafi who is in prison awaiting trial for crimes against humanity. Australian lawyer named Melinda Taylor and her Lebanese interpreter violated the international law as related to such sensitive issue.

    Taylor makes a Libyan national security breach and turns out to be a spy for an unknown party. She gets caught red handed, violating the Libyan people’s trust in the ICC and its employees from top down.
    "She is under investigation because she committed a crime. According to Libyan law, it would be spying and communication with the enemy."
    ICC president Judge Sang-Hyun Song said in the tribunal's statement from The Hague: "We are very concerned about the safety of our staff in the absence of any contact with them.

    •  One could well ask rhetorically, (0+ / 0-)

      "Who's in charge in the US?" And then cite conflicting actions by federal and state governments.

      The fact is that Libya is trying to find it's way to democratic government after 42 years of one-man rule and I think they are doing good so far.

      These 4 ICC staffers in no way represent Qaddafi's attorneys so attorney-client privilege has no standing in this case. Even when it has effect it doesn't allow for pasting info to third parties such as his lieutenants.

      Besides, Saif has refused to name his defense attorney and until he does he, can't claim attorney-client privilege in any case.

      Remember history, Clay Claiborne, Director Vietnam: American Holocaust - narrated by Martin Sheen

      by Clay Claiborne on Mon Jun 11, 2012 at 02:40:51 PM PDT

      [ Parent ]

      •  Melinda Taylor was there to help Saif organize (0+ / 0-)

        his defense. She was assigned the task by the ICC.

        This has the potential to do severe international damage to the Libyan interim government if it is not resolved quickly.

        Detained lawyer Melinda Taylor ‘woman of integrity'
        [video 4:04]
            By Kate Kyriacou
            From: The Courier-Mail
            June 12, 2012 12:00AM
        Libya says the international team will be kept in "preventive" detention in prison for 45 days.

        An official at the attorney general's office said the team of four International Criminal Court envoys would be held while "investigations are conducted".

        Ajmi al-Atiri, head of the brigade that detained the delegation after it visited Muammar Gaddafi's son Seif al-Islam, said: "They were transferred yesterday to a prison on the orders of the prosecutor general."

        The case has stunned Queensland legal circles where Ms Taylor has been described a woman who has dedicated her career to seeking justice and providing a voice for victims.

        "Who's in charge in the US?" And then cite conflicting actions by federal and state governments.
        That's nonsense. Under the NDAA this would be a federal matter in the US and handled by the US military - not state police or National Guard units.
  •  That's easy--Libya. n/t (1+ / 0-)
    Recommended by:

    Romney '12: Bully for America!

    by Rich in PA on Mon Jun 11, 2012 at 01:33:01 PM PDT

  •  The western media will destroy the NTC if (1+ / 0-)
    Recommended by:

    the ICC detention is not resolved quickly. Notice how the Financial Times reports this. How soon regimes fall out of favor.

    Libya fails to explain detention of ICC staff
    June 11, 2012

    Authorities in Libya have yet to explain to the International Criminal Court in The Hague why they have arrested four of its staff while they were on an official visit to the imprisoned son of former Libyan dictator Muammer Gaddafi.
    But Zintan's various militias quickly began taking over turf and establishing themselves as a force above the law in the capital. Since capturing Seif al-Islam Gaddafi in southern Libya last year, they have refused to hand him over to authorities in Tripoli, detaining him in a secret prison in what some say is an attempt to maintain leverage over the central government.

    The detention of the ICC staff coincides with a worsening trend of violence against westerners in Libya, which is struggling to restore order in the aftermath of the overthrow of Gaddafi last year.

  •  Suspects to have privileged contacts w/ lawyers (1+ / 0-)
    Recommended by:
    Four ICC staff members detained in Libya; Immediate release requested
    ICC Press Release: 09.06.2012
    In accordance with the Pre-Trial Chamber I decision, dated 27 April 2012, the delegation travelled to Libya on Wednesday, 6 June, to meet with Saif Al-Islam Gaddafi in Zintan, in part as a privileged visit by the Office of Public Counsel for the Defence, currently appointed to represent Mr Gaddafi in the case brought against him. The delegation also included members of the ICC Registry with the view of discussing with Mr Gaddafi the option to appoint counsel of his own choosing. Libya made a submission to the Pre-Trial Chamber ensuring that it would facilitate access to Mr Gaddafi by his lawyers. This agreement has been further confirmed during the contacts between the Libyan government and the ICC Registry.

    In accordance with the unanimous resolution 1970 of the United Nations Security Council, which seized the ICC with the Libyan situation, Libya has the legal obligation to fully cooperate with the ICC, including the respect of the legal regime imposed by the Rome Statute which emphasizes the rights of the suspects to have privileged contacts with their lawyers.

  •  "Rule of law" - Libya style (0+ / 0-)

    Libya government spokesman using Melinda Taylor as bargaining chip to gain information. Looks like kidnapping and extortion to me. Of course, this is nothing new to the militias. They've been doing it against one another since the fall of Gaddafi.

    Libya offers bargain for lawyer's release
    Now Libyan government spokesman Mohamad Al-Hereizi says he and the rebels believe that Ms Taylor knows where Mohammed Ismail is hiding.

    Asked by the ABC's AM program if "after she tells you where Mohammed Ismail is, then you will let her go?", Mr al-Hereizi replied: "Yes".
    "We don't have anything against this woman. Just we need some information from her, after that she will be free."

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