The son of former Libyan ruler Muammar Gaddafi, Saif al-Islam Gaddafi continues to evade prosecution for a series of violent war crime allegations by the International Criminal Court (ICC). Along with Mahmoud Mustafa Busayf al-Werfalli and al-Tuhamy Mohamed Khaled, Saif al-Islam Gaddafi stands accused of a series of grave war crime charges carried out throughout the 2011 Libyan revolution which saw his father removed from power and Libya descend into a bitter power struggle in an unstable political vacuum. In a statement this week, head ICC Prosecutor Fatou Bensouda emphasized to the UN Security Council that the arrest and transfer of the accused men to the Hague would “send a strong and necessary message” to the victims of the 2011 political suppression.
The International Coalition Against War Criminals estimates that anywhere from 2,500 to 25,000 people have been killed by government forces, though the final number is difficult to ascertain given the strict government controls on Libya’s media. However, although Gaddafi’s arrest warrant was issued by the ICC on the 27 June 2011 for crimes against humanity under the Rome Statute, the likelihood that he will answer for his crimes is becoming increasingly incredulous as the crippling limitations of the ICC to execute warrants and urge politically unstable or noncompliant States to respond to demands of the international community is exposed by the continuing Libyan crisis.
It is clear Libya has become a hotbed of political chaos since NATO’s 2011 bombing campaign, and despite the UN supporting the interim Government of National Accord, they have continued to struggle to project power nationally and thus respond to the ICC’s arrest warrant demands. What complicates the situation further is that since 2011, Saif al-Islam has maintained strong public support from a large portion of Libyan society, becoming glorified as a reformer and a viable political candidate to re-stabilize the country. Since he was released in June 2017 from his prison in Zintan by rebel authorities, not only was he withheld from the ICC, but announced in March 2018 that he intended to run in the next presidential election for the Popular Front for the Liberation of Libya. In January of this year, Saif al-Islam stated he desired “elections to run as soon as possible” in what is perceived as an attempt to capitalize on his rising support. There is no constitutional restriction to prohibit Saif al-Islam from candidature and his potential success as the leader of a Gaddafi loyalist militia and party means he may not only evade his grave crimes against humanity but also threaten the future democratic intentions of Libya’s UN-backed interim government.
Although the ICC Prosecutor’s statement that “authorities in Libya remained under an obligation to arrest and surrender Mr. Gaddafi to the ICC”, no single government enjoys full legitimacy or political capacity. Despite Bensouda being correct in her claim that the transfer of Saif al-Islam Gaddafi to The Hague is “the first and indispensable step” in establishing the rule of the law and promoting ongoing peace and stability in Libya, the competing political factions are either unwilling or simply incapable of complying with the ICC’s demands.
The challenging implications of establishing the rule of law and compliance with the Rome Statute in situations of instability and persistent political turmoil are made clear by the Libyan example. As communicated by Human Rights Watch, despite his popularity, the authorities competing for legitimacy in Libya should make concerted efforts to surrender Saif al-Islam Gaddafi to the ICC. Although the just trial of Gaddafi would be an invaluable step in validating the suffering of the victims of the 2011 brutality, it has been made impertinently clear that despite the gravity of his crimes, the ICC is reliant on the cooperation of the Libyan State. As rival powers continue to contend in Libya, it has never been more important for the international community to remain firm in its humanitarian posture in the face of the politically volatile crisis and the potential re-emergence of a Gaddafi State.