Standoff over who will try Saif Al Islam Qaddafi

Tribesmen holding the son of Muammar Qaddafi may be using him as a bargaining chip as NTC and international court vie for right to put him in the dock

Saif Al Islam, the son of the former Libya dictator Muammar Qaddafi, has been held in Zintan since mid-November.

AMSTERDAM // Libyan authorities, the international community and tribesmen from Zintan are at odds over the custody and eventual trial of Saif Al Islam Qaddafi, son of the former Libyan dictator.

The International Criminal Court in The Hague this week extended until January 23 a deadline for Libyan officials to explain what they plan to do with him.

Mr Qaddafi was last seen in public in mid-November, shortly after he was captured in the Libyan desert. Dressed in Bedouin garb rather than the designer suits he was accustomed to, he looked bedraggled and slightly confused, with one of his hands bandaged.

He has since been held in Zintan, a city whose fighters captured him and who played a prominent part in the fall of the Qaddafi regime. They are now insisting on a prominent role in the new government and may see him as a bargaining chip.

Mr Qaddafi has been visited by the International Red Cross as well as a representative of Human Rights Watch but has reportedly not yet been able to consult a lawyer. He has not been handed over to the National Transitional Council (NTC) in Tripoli.

While the NTC has said that it wants to try Mr Qaddafi in Libya for his part in the violent suppression of initially peaceful anti-government protests last year, the jurisdiction over his case still lies with the International Criminal Court (ICC) in The Hague, which has indicted him for crimes against humanity. The ICC took up the case of Libya at the request of the UN Security Council in February last year.

If Libya wants to put Mr Qaddafi on trial, the course it has to follow is clear, said the ICC's spokesperson, Fadi El Abdallah.

"The Libyan authorities will need to decide either to surrender Mr Qaddafi to the court or file a challenge to the admissibility of the case before the ICC," he said

So far, no challenge has been filed and the ICC has not gotten any answers about Mr Qaddafi's fate. It has therefore asked the Libyan authorities to provide a number of "observations", including the legal grounds on which Mr Qaddafi is being held, whether he is being held incommunicado, whether the ICC can get access to him and whether the Libyans actually plan to hand him over to the ICC.

But Mr El Abdallah stressed that there is no question at the moment whether Libya's interim authorities will cooperate. "Up to now the Libyan authorities have always been co-operating and indicated that they are willing to cooperate. Even with the issue of the observations, they said they need additional time. They did not say they don't want to submit them."

One of the complicating factors may be that Mr Qaddafi is being held by the Zintan tribe.

Alan Fraser, an intelligence analyst with the UK-based risk management group AKE speaking from Tripoli, said that Zintan authorities may have their own agenda in keeping Mr Qaddafi.

"I would imagine that the Zintanis have the intention to hand him over but they're waiting for the right moment. They continue to use him as a bargaining chip," Mr Fraser said.

The issue of Mr Qaddafi has become something of an embarrassment for international human-rights groups. While they used to condemn him and his father for their alleged violations, they now have to worry about him receiving a proper trial, particularly after the grisly fate of his father, Muammar Qaddafi, who was killed soon after he was captured.

Alison Smith of the Brussels-based group No Peace Without Justice explained that "the concern that everybody has is not so much with Saif Al Islam himself but with the system of justice at the national level and the international level".

She was confident that Libya could provide a fair trial for Mr Qaddafi. Human rights groups are divided on where the trial should take place but Mrs Smith said Libya was preferable. "They are very keen to make their own decisions after 42 years of oppression, not to be told what to do by somebody else."

Even so, the new Libyan authorities have an odd way of showing sensitivity to international human-rights concerns. Over the weekend they hosted president Omar Hassan Al Bashir of Sudan, who has been indicted by the ICC for crimes against humanity.

While it was the right of the Libyan authorities to receive him, Mrs Smith said: "It is not in their interest to be seen to be hosting an alleged war criminal."