Les nouvelles se font rares, et plus difficiles à traquer.
Saif al Islam a été pris. Où sera-t-il jugé ?
Le 20 novembre 2011, on en était là :
http://www.guardian.co.uk/commentisfree/2011/nov/20/saif-gaddafi-trial-libya-the-hagueWhere should Saif Gaddafi be put on trial?
The new Libya is keen to show it can deliver justice, but The Hague judges will have to be involved
Philippe Sands
Gaunt, frightened and with nowhere left to go, a captured Saif Gaddafi confronts the new Libyan government with a dilemma: whether or not to ship him off to The Hague.
In reality, the government's room for manoeuvre may be more limited than it thinks. In March, when security council resolution 1970 referred the situation in Libya to the prosecutor of the international criminal court, it internationalised the judicial response to Saif's alleged crimes. In May, the prosecutor reported that Saif was associated with the killings of peaceful demonstrators, the recruitment and mobilisation of mercenaries and militias, and the imprisonment and elimination of opponents. On 27 June, three ICC judges issued an international arrest warrant against him, citing him as a co-perpetrator in crimes against humanity, with his father and Abdullah al-Senussi, the head of military intelligence – now also reportedly captured.
The June decision gave the ICC judges a key role in deciding where and how Saif will be tried. Although Libya is not a party to the ICC statute, it is a UN member, and resolution 1970 explicitly provides that "the Libyan authorities shall co-operate fully with and provide any necessary assistance to the court and the prosecutor".
The new Libyan government is therefore bound by a legal framework: it cannot lawfully ignore the ICC judges and decide that Saif will be tried under local law. Unlike Iraq, where there was no international indictment of Saddam, the decision on Saif is not an exclusively Libyan affair.
What does this mean in practice? There are basically four options. The first is to send Saif to the ICC for trial in The Hague. Even this decision would not be free from difficulty: who decides, and according to what criteria? A second option is for the ICC and the new Libyan government to reach agreement on an ICC trial in Libya. This is not something the court has done before; it might go some way to satisfy understandable demands in Libya for a local trial, subject to international oversight and justice dispensed by international judges.
There is a third possibility, if Libya's government really does want to try him in the country under its own law and procedure: under the principle of complementarity, which may give national courts a first bite, the government may have to persuade the ICC judges it truly is able to prosecute him under fair trial conditions for the international crimes for which the international arrest warrant was issued. Libya's legal system has a terrible record on doing justice – Iraq needed extensive help from the US to create an illusion of fair trial.
A fourth option is for the Libyan courts to try him first for some other alleged crimes that are outside the jurisdiction of the ICC, for example because they occurred before February 2011, when the ICC became a player. This option would clearly be available in relation to Senussi, who has been directly implicated in the mass killings that occurred in 1996 at the notorious Abu Salim prison. Whether there is sufficient evidence against Saif is unclear.
The ICC prosecutor is in Libya this week to discuss the way forward. He will face a government that is still in flux, and under considerable local pressure to see justice is done in Libya. The bloody killing of Muammar Gaddafi, however, raises serious questions about whether that is possible, but it also increased the pressures on the new government to show it can deliver justice in a rule-of-law framework.
Many of those who say the trial should take place in Libya nevertheless recognise that Iraq's proceedings against Saddam circumvented many of his greatest crimes and came to an expedited conclusion, and wonder whether sham, local justice can ever be avoided in the aftermath of a bloody conflict. Also, the international justice may not offer the swift justice some will want, as the abortive trial of Slobodan Milosevic made clear. Others with a clear interest in what happens next will include those in the west who were, until recently, friends with Saif, wondering whether his extensive contacts will be more or less public in a trial in Libya or The Hague.
The ICC intervention helped transform the outcome in Libya by contributing to the delegitimisation of the Gaddafi regime. Military action followed and was decisive. But the ICC's role made the crimes an international matter, and in staying the hand of vengeance the Hague judges will have to be involved. The ICC is entitled to the fullest co-operation of the UK, and to hope for support from the US.
Et le 4 décembre, libre commentaire de Benjamin Barber :
http://www.guardian.co.uk/commentisfree/2011/dec/04/saif-gaddafi-no-fraud
Fair trials rarely emerge from the fog of war. The victors not only tell the tale but render judgment on it. That is why I would prefer a truth and reconciliation commission to Libyan trials of Saif Gaddafi; or for Lord Woolf, whose report on Gaddafi's relationship with the London School of Economics was released last week, to preside over a trial.
Although Gaddafi has so far avoided the terminal vengeance visited on his father, a trial by Zintan militiamen or Transitional National Council members who are themselves in permanent transition is hardly likely to be very clarifying, let alone fair. The international criminal court is probably the best bet for justice (though one worries about Nato's influence), but also the least likely venue.
For Libya to make the difficult move from revolution (killing tyrants) to democracy (establishing free institutions and creating free Libyan citizens), Gaddafi must be tried. The story of his own role in the runup to the insurgency – including his time at the LSE, his international foundation work, and his putative leadership in helping forge a reform coalition that included key TNC members like Mahmoud Gebril and Abdul Jalil – needs to be heard. For that story is a counterpoint to his subsequent betrayal of all he said he believed in. Since the TNC wishes not only to investigate Gaddafi's role during the insurgency, but to examine issues of corruption, abuse of state funds, torture and murder under the supposed regime, it should welcome a more encompassing inquiry.
The model is the Woolf commission, which looked at Gaddafi's relationship with the LSE as a PhD student and a donor. Gaddafi's dissertation and the book (Manifesto) he wrote afterwards speak to his beliefs and principles, so whether they expressed his own ideas and whether he actually wrote them is of real consequence to judging the authenticity of his "liberalism".
The Woolf report is a compendium of prudent warnings about dealing with students from developing countries who may become leaders – but if Lord Woolf is appropriately lucid about the need for far greater care in these matters, he also makes clear that "Saif Gaddafi's ideas were his own". The University of London confirmed this with its decision not to revoke his PhD. Since much of the distrust of Gaddafi's posture as a reformer and liberal before the revolution has rested on the claim that the degree was fraudulent, this conclusion is of critical importance. In fact, there has not been much dispute about what Saif Gaddafi was doing in Libya, only whether he was sincere or just posturing.
I believe the Woolf Commission's report also supports the position that Gaddafi was an original thinker, a democratic reformer who was taking risks on behalf of change, bringing the likes of Jalil and Gebril into government. In fact, Gaddafi took risks from 2003 when he helped negotiate the surrender of weapons of mass destruction that led to Libya's opening to the west, then helped free the four Bulgarian nurses and Palestinian doctor being held on bogus charges of infecting children with Aids (in Benghazi), and played a key role in negotiating the Lockerbie settlement. He was also instrumental in the release of Hakim Belhaj from a Libyan prison where Muammar Gaddafi had dumped him at the request of the US. Belhaj is the militia leader and former al Qaida member who took Tripoli during the summer.
Though the media still refer to Saif Gaddafi as his father's "heir apparent", Saif forcefully refused that role, insisting he would never take a position that was not subject to elections, turning down roles offered by his father at some peril.
In truth, the anomaly is not what Saif Gaddafi did before the revolution, but what he did once it began – abandoning nearly a decade of studies and turning his back on the risky reform work he had done. But even during the insurgency, and despite his Michael Corleone-style turnaround, Saif Gaddafi still sought to find a peaceful way out. He reached out to South Africa, to the Turks and to others with schemes that would force his father to step down but let him retire in Libya. Nonetheless, in aligning himself with family and clan, he was destroying the hopes of peaceful reform he had once inspired.
The question remains precisely what Saif Gaddafi did do during the insurgency. Was he merely a cheerleader for the regime, or was he giving orders? His brothers Mutassim and Khemis commanded brigades engaged in brutal deeds. What of Saif? My guess is that the evidence here will be more circumstantial than definitive.
No one who watched Muammar Gaddafi being killed by his captors can avoid feeling that procedural justice was being defiled even as a certain historical justice was being meted out. As for his son, Saif Gaddafi may deserve prison for what he did during the insurgency, but for a decade his heart was on the side of reform and democracy. Unless there is compelling evidence of direct orders to kill civilians or of command over troops involved in killing, he does not deserve a death sentence. The people of Libya today rightly cry for justice, but if they are just they will recognise that there is no simple formula in this case.