The world might soon hear again from Saif al-Islam Gaddafi. No longer able to deliver fiery speeches to his supporters, the one-time heir of the late Libyan dictator may appear soon in the dock of the International Criminal Court (ICC) in the Hague. On Wednesday, April 4, ICC judges demanded that Libyan officials surrender Muammar Gaddafi's son immediately, rejecting a second request from authorities in Tripoli to allow them time to mount a legal argument to try the most powerful son of the slain dictator on their soil. Instead, the ICC judges' ruling found that Libya had no sound legal argument for delaying Saif's transfer and ordered the officials to "start making arrangements ... for the surrender of Mr. Gaddafi ... without further ado."
The ruling came nearly five months after the younger Gaddafi was captured by Libya's Zintan militia and flown to that town. He has been in custody there ever since, with virtually no contact with the outside world. In addition to Libya's former intelligence chief Abdullah al-Senussi (who is in custody in Mauritania), Saif is under ICC indictment for crimes against humanity based on allegations that he ordered the military to fire on unarmed protesters in eastern Libya during the early days of last year's revolution, before the rebels became an armed force.
The ICC's outgoing prosecutor, Luis Moreno-Ocampo, has said he has solid evidence that Saif was deeply involved from the beginning in the deadly crackdown against protesters. He told Vanity Fair last August that text messages between Saif and top Muammar Gaddafi officials showed "Saif heading the transport of the soldiers coming from Chad" who were reportedly key to the regime's action against the opposition.
The ICC's surrender order could mean years, perhaps decades, in jail for Saif once he's transferred to the Hague. Even so, Saif's defenders have long believed he would have a better shot at a fair trial in the Hague than he would in Libya, whose courts are in deep disarray six months after the war's end and where the death penalty is on the books. A close former aide to Saif told TIME on Wednesday, "He's been in total isolation and has no contact with lawyers or family and friends."
That was also the picture painted by the ICC's public defenders, two of whom visited Saif in Zintan earlier this year. Outlining the conditions in which Saif has been held since he was captured on Nov. 19, an ICC statement said Libyan officials had denied Saif medical treatment for a hand injury sustained during his capture and dental treatment for a toothache. In addition, he has had no communication with family or friends; the only outside visit was last December by Fred Abrahams, Human Rights Watch's special adviser in New York City. "Apart from visits from officials and prosecuting authorities, he has been kept in total isolation," the ICC defense office report says, describing Saif's status as "a legal black hole."
But another legal black hole could lie ahead, within Libya's fractured politics. Libya's Justice Ministry in Tripoli now needs to wrest control of Saif from the powerful militia in Zintan, which wields authority over the city 85 miles (137 km) west of the capital and over Libya's highly prized prisoner. Until now, Zintan's leaders have shown no inclination to hand over Saif, despite several statements from Tripoli that Saif will be imprisoned in the capital as soon as a specially constructed prison cell is ready for him. And even if Saif is transferred to Tripoli, Libyan officials have expressed ambivalence about trying him in the Hague.
If Libya fails to send Saif to the ICC, its new leaders could face U.N. sanctions for noncooperation with the ICC. In reality, that might not mean much and Libya could, in effect, play for more time. Sudan's government has been similarly rebuked by the U.N. for failing to surrender two government officials to the ICC for their alleged crimes against humanity in the Darfur conflict. Yet the U.N. has yet to impose concrete, much less punitive, action against Sudan for noncooperation with the court.
Libya, however, could be different or so human-rights groups are hoping. Having driven out Gaddafi with NATO's help, Libya's new leaders are keen to establish the country's international credentials after decades of pariah status under Gaddafi. "So far, Libya has cooperated with the court, and they've continued to show a good-faith approach with the ICC," says Elizabeth Evenson, senior counsel for Human Rights Watch's international-justice program in Brussels. "We're expecting that they will understand the importance" of surrendering Saif to the Hague, she says.
In a blistering statement on Thursday, the ICC's Office of Public Counsel for the Defence accused Libyan officials of effectively bungling the case against by far their highest-profile prisoner indeed, the most powerful figure left alive from Muammar Gaddafi's 42-year dictatorship. Western leaders once hailed Saif as the bright, reformist hope for Libya's future.
As the months have dragged on, international lawyers have grown concerned that Saif might be killed in custody rather than brought to trial a prospect that the ICC's defense lawyers argued would be extremely bad for Libya's new leaders. The defense counsel's report said Saif "has been physically attacked" but gave no details. "The brutal death of Muammar Gaddafi deprived the Libyan people of their right to justice, and their right to the truth," the report said. "It would be a travesty for the prospects of a free and fair Libyan state if the same were to occur to his son."
There are secrets with Saif that some people may not want to hear. Although the ICC indictment concerns Saif's actions last February, Saif has often said that if given the chance, he would divulge highly embarrassing information about Western leaders. In recent months, French journalists have pointed to details concerning possible Libyan funding for President Nicolas Sarkozy's 2007 election campaign. More explosive, perhaps, are questions over what deal was struck with officials from former British Prime Minister Tony Blair's government in order to secure hugely lucrative energy concessions for British companies. Blair and others have long rebuffed suggestions that a tacit arrangement led to the release in August 2010 from a Scottish prison of Abdelbaset al-Megrahi, who was convicted in the bombing attack on a Pan Am jetliner that killed 270 people. The man who negotiated al-Megrahi's release and escorted him home to ecstatic crowds was Saif.