Operation Oil Theft: Month 9, Week 1, Day 1.

Two days after his capture the Zintan Brigade paramilitary militia have still not handed Saif al-Islam Qaddafi over to Libya's Transitional National Council (TNC). The TNC though have promised that Saif al-Islam will receive a fair trial in Libya. This makes me think that after 40 years of Muammer Qaddafi hollowing out public institutions and amid the chaos of building a new nation out of the wreckage of civil war no-one in Libya actually understands what a "fair" trial involves.

Along with the principle of Habeas corpus which prevents a prisoner being detained indefinitely without charge a fair trial carefully balances the rights of the accused with the rights of the accuser through a system of complex legal principles. These are too many and varied to cover fully here so I'll concentrate on the two that are the most important and relevant to this case.

The first is the presumption of innocence. This means that the accused is considered wholly innocent until their guilt is proved beyond reasonable doubt. That means in order to find Saif al-Islam guilty the prosecution will not only have to prove that the acts he is accused of actually happened but that he knowingly caused them to happen. In this case that means providing documents signed by Saif al-Islam in which he ordered fighters to do certain things or providing testimony from credible witnesses that they were in the room when Saif al-Islam ordered them to do certain things. Simply saying that Saif al-Islam was a member of the then Libyan government and Libyan government forces did some bad things is not enough.

The second is the right to the best possible defence. In a fair trial Saif al-Islam will be allowed to put forward the best argument to explain why he has not committed any crime. If I was representing him I would tell him to use the defence of "what is necessary is also lawful." Taking the siege of Misrata as an example the use of indiscriminate weapons (Grad rockets, artillery etc) against a civilian population centre is undoubtedly a breach of the laws of war and a crime against humanity. However the Misrata Brigade was hiding in and amongst the civilian population and the NATO air campaign severely restricted the military options available to the then Libyan government so indiscriminate weapons were the only weapons that could be used to keep the Misrata Brigade contained. When the siege was broken the Misrata Brigade went on to commit massacres and forcibly remove black Libyans from Tawargha and surrounding villages. Therefore the lesser offence of using indiscriminate weapons became lawful because it prevented the greater crimes of genocide and ethnic cleansing.

Do we seriously think that there is a Judge, lawyer, politician or man in Libya who is going to allow Saif al-Islam to walk free on the grounds that the Misrata Brigade militia are the greater criminals and do we even think that would be a good idea. If we don't then Saif al-Islam will not receive a fair trial in Libya.