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Muammar Gaddafi's spy master should have been tried at the international criminal court which indicted him last year
The extradition of Abdullah al-Senussi, Gaddafi's spy master, from Mauritania for trial in Tripoli is a blow to international justice – and to the government's pretended support for it. Although one of the worst men left in the world, Senussi should have been tried, first and fairly, at the international criminal court (ICC) which indicted him last year.
Afterwards, there are claims from France (where he was convicted in absentia for organising the bombing of a UTA passenger plane) and he should face questioning over his role in Lockerbie. Instead, without a murmur of protest from Britain or the UN security council, he has been returned to Libya where he will receive not justice, but revenge.
Not that he is undeserving of punishment if found guilty of domestic crimes – notably the mass murder of 1,200 prisoners at Abu Salim jail in 1996. However, Libya is under an international duty to co-operate with – ie give precedence to – the ICC, a duty that it has breached in the case of Saif Gaddafi and will breach again with Senussi.
The reason, of course, is the death penalty. Libya wants to see both men at the end of a rope. The ICC cannot execute and could not properly send them back to Libya after trial in The Hague without an undertaking that he would not be strung up. So Libya, with the connivance of Interpol (whose red notice system is abused by vengeful governments) got hold of Senussi first, for a trial that will be about as fair as that of Saddam Hussein, and which will doubtless end in the same way.
These cases expose a design fault in the ICC. It is meant to be a court of last resort, leaving international criminals to their fate in their own country unless trial there is impossible. After a revolution, trial is always possible but fair trial usually is not. New governments want to execute old leaders as quickly as possible. There is overwhelming prejudice, usually a new set of judges hand-picked by the victors, and a public eager to see their past tormentors on the gallows. When the ICC indicts a political or military leader it contributes to their fall (as it did in the cases of Milosevic and Colonel Gaddafi) and has a moral duty to protect them from an unfair local trial and consequent death sentence.
But the ICC cannot even protect its own lawyers in Libya – that government's unfitness to try Saif Gaddafi was demonstrated when it defamed Melinda Taylor, an ICC defender captured by the militia that was holding her client. He goes on trial this month, apparently, and it will be a sorry end for Nato's intervention when these two men are topped while the murderers of Colonel Gaddafi are free and fêted.
So what did the British government do to ensure that international justice ran its proper course? Absolutely nothing. The Libyan prime minister visited Mauritania to lobby its government successfully. The UK made no effort to press for him to be sent to The Hague, where he should have been interviewed about Lockerbie (he was Abdelbaset al-Megrahi's boss and so more guilty than he was, if he was guilty). As a permanent member of the security council, the UK had a duty to make sure Libya complied with resolution 1970, which places upon it an obligation to co-operate with the ICC prosecutor.
We have become too blasé about death sentences on our enemies – the murder of bin Laden and of drone victims, and executions after biased trials – like that of Saddam. Hague has been threatening Assad and his relatives with an ICC indictment, but this is not much of a threat if the Free Syrian Army is ever in a position to put them on what it may call a "trial" (which would be as speedy as that of Ceaucescu). The British government must insist that both Senussi and Gaddafi be delivered to The Hague, on pain of sanctions for breach of resolution 1970.
However much it may be an irony that the ICC protects fallen tyrants from the death they once decreed for thousands of their subjects, international justice must pursue its commitment to fair trial. Once indicted, a defendant should be prosecuted by his own country only if his trial can be fair and his fate, at worst, imprisonment for life.
Geoffrey Robertson QC is author of Crimes against Humanity (Penguin)