On June 7, Libya made history in international justice circles when International Criminal Court (ICC) lawyer Melinda Taylor was detained in the Libyan town of Zintan after meeting with her client, Saif al-Islam Gaddafi, the former Libyan leader’s son.
The detention – a first in the ICC’s 10-year history – raised eyebrows and initially sparked assurances that the unprecedented complication would be quickly resolved.
But more than two weeks later, Taylor was still being held by a Zintan militia when a political row over Libya’s justice system erupted across the border in neighbouring Tunisia.
A day after Tunisia extradited a former Libyan prime minister under Muammar Gaddafi, Tunisian President Moncef Marzouki publicly rebuked his prime minister for the “illegal” extradition.
President Marzouki, a former human rights campaigner, had opposed the extradition of ex-Libyan Prime Minister Al-Baghdadi Al-Mahmoudi on grounds that the Gaddafi loyalist might not get a fair trial in Libya, and his life could be in danger.
Tunisia's extradition of former Libyan Prime Minister Al-Baghdadi Al-Mahmoudi has revealed rifts between Tunisia's secularists and Islamists.
Just weeks ahead of Libya’s first post-Gaddafi election, scheduled for July 7, the two high-profile, international incidents have exposed the precarious state of Libya’s justice system amid mounting international warnings over the interim administration’s failure to disarm some of the country’s most powerful militias that helped oust Gaddafi last year.
“Both cases, and certainly the case of the ICC lawyer shows that Libya’s justice system is far from being a functioning justice system,” said Clive Baldwin, senior legal advisor at the New York-based Human Rights Watch. “Of particular concern is that the official authorities in Libya have gone along with the actions of the militia.”
A rare concurrence between the NTC and Zintan militia
Taylor, a respected Australian lawyer, was detained along with three ICC colleagues by the powerful Zintan militia – also called the Zintan brigade –following allegations that she secretly smuggled spying devices and documents to Saif Gaddafi.
In the days following Taylor’s arrest, Libya’s National Transitional Council (NTC) has defended her detention and provided details of her arrest to Australian Foreign Minister Bob Carr - who visited Libya last week in an unsuccessful bid to secure her release - as well as the Hague-based ICC and the UN Security Council.
In a letter to the UN Security Council, which was obtained by the British daily, the Guardian, the NTC noted that among other allegedly incriminating documents, Taylor had “a coded letter” from Mohammad Ismail, a former Saif Gaddafi aide.
Despite its vigorous defense of Taylor’s detention to various international bodies, the NTC itself does not have custody over the Australian lawyer.
Taylor - like her client, Saif Gaddafi– is being held by the Zintan brigade.
In the eight months following Gaddafi’s death, NTC officials have repeatedly promised to disband the militias. Relations between the NTC and some of the militias have often been tense, while clashes have erupted between rival militias in the capital of Tripoli.
But Taylor’s case has resulted in a rare display of concordance between NTC officials and the Zintan brigade.
While the NTC would prefer not to hand over Saif Gaddafi to the ICC, experts believe the Zintan brigade is holding the former Libyan dictator’s son as a bargaining chip in its dealings with Libyan authorities. As Andrew McGregor of the Washington security think-tank Jamestown Foundation noted in the Canadian daily, The Toronto Star, it’s as if both parties are sending a message to the ICC that “the Gaddafis belong to us.”
For its part, the ICC has repeatedly offered to investigate the allegations against Taylor and has noted that under international law, Taylor as a UN lawyer enjoys diplomatic immunity as well as access to her client.
But amid frantic efforts to secure Taylor’s release, the ICC in recent days has adopted a more diplomatic discourse.
Thousands of detainees in militia-run camps
As an Australian citizen and an ICC staffer, Taylor’s detention in Libya has attracted public attention and a diplomatic scramble to secure her release.
On Wednesday, she was able to contact her family and let them know she was well.
But not all Libyan detainees enjoy Taylor’s high-profile status.
According to Libyan government and UN figures, there are at least 7,000 people currently in detention in Libya. Roughly 4,000 of them are being held by various militias across the country in both formal and secret detention facilities. The rest are in facilities run by the government.
The detainees include Libyans and foreigners – mostly from sub-Saharan African countries. While some of the migrants served as Gaddafi’s mercenaries, most are economic immigrants – many illegal - from countries such as Mali, Eritrea and Somalia who came to oil-rich Libya to work.
In a June 25 FRANCE 24’s Observers post, Geneviève Jacques of the Paris-based International Federation of Human Rights (IFHR) documented the appalling conditions in some militia-run detention camps.
Libyan authorities have acknowledged that very few of the detainees have been formally charged or have appeared before a judicial authority.
“That’s very worrying,” noted Human Rights Watch’s Baldwin. “Every detainee has to be taken before a judge quickly, it’s a very basic step. It shows that there’s rule of law and it’s also a way to determine if there has been abuse since a detainee is able to speak freely before a judge. This is a basic rule that has not been applied in Libya and it makes you wonder about the extent of the abuse.”
Deaths in custody
While monitors from groups such as Human Rights Watch have been provided access to government-run prisons, access to militia-run detention facilities – especially secret prisons – is far more difficult.
One of the more high profile cases of abuse was the January 2012 torture and killing in detention of Omar Brebesh, Libya’s former ambassador to France who died less than 24 hours after he was detained by the Zintan brigade.
Following widespread international condemnation of Brebesh’s killing, Libyan authorities said nine suspects were arrested, one of whom was then released. Their trial is expected to begin soon.
Brebesh’s killing in custody was reminiscent of Gaddafi’s October 2011 death, hours after he was captured alive in his hometown of Sirte.
As the world squirmed over the gruesome images of Gaddafi’s capture, Libyans took to the streets to celebrate their former dictator’s death. If there were qualms over the seemingly summary justice meted on Gaddafi, it was not apparent during the mass celebrations.
The grisly fates of the likes of Gaddafi and Brebesh have not inspired faith among the international community of the Libyan government’s commitment or ability to ensure that Libya avoids a victor’s justice.
“There will always be some form of revenge after civil war – especially after brutal, repressive regimes. But sometimes it’s used as an excuse,” said Baldwin. “It will be particularly concerning if we start to hear that only those who supported the revolution are entitled to human rights and those who didn’t are not entitled to human rights.”