Fair trials rarely emerge from the fog of war. The victors not only tell the tale but render judgment on it. That is why I would prefer a truth and reconciliation commission to Libyan trials of Saif Gaddafi; or for Lord Woolf, whose report on Gaddafi's relationship with the London School of Economics was released last week, to preside over a trial.
Although Gaddafi has so far avoided the terminal vengeance visited on his father, a trial by Zintan militiamen or Transitional National Council members who are themselves in permanent transition is hardly likely to be very clarifying, let alone fair. The international criminal court is probably the best bet for justice (though one worries about Nato's influence), but also the least likely venue.
For Libya to make the difficult move from revolution (killing tyrants) to democracy (establishing free institutions and creating free Libyan citizens), Gaddafi must be tried. The story of his own role in the runup to the insurgency – including his time at the LSE, his international foundation work, and his putative leadership in helping forge a reform coalition that included key TNC members like Mahmoud Gebril and Abdul Jalil – needs to be heard. For that story is a counterpoint to his subsequent betrayal of all he said he believed in. Since the TNC wishes not only to investigate Gaddafi's role during the insurgency, but to examine issues of corruption, abuse of state funds, torture and murder under the supposed regime, it should welcome a more encompassing inquiry.
The model is the Woolf commission, which looked at Gaddafi's relationship with the LSE as a PhD student and a donor. Gaddafi's dissertation and the book (Manifesto) he wrote afterwards speak to his beliefs and principles, so whether they expressed his own ideas and whether he actually wrote them is of real consequence to judging the authenticity of his "liberalism".
The Woolf report is a compendium of prudent warnings about dealing with students from developing countries who may become leaders – but if Lord Woolf is appropriately lucid about the need for far greater care in these matters, he also makes clear that "Saif Gaddafi's ideas were his own". The University of London confirmed this with its decision not to revoke his PhD. Since much of the distrust of Gaddafi's posture as a reformer and liberal before the revolution has rested on the claim that the degree was fraudulent, this conclusion is of critical importance. In fact, there has not been much dispute about what Saif Gaddafi was doing in Libya, only whether he was sincere or just posturing.
I believe the Woolf Commission's report also supports the position that Gaddafi was an original thinker, a democratic reformer who was taking risks on behalf of change, bringing the likes of Jalil and Gebril into government. In fact, Gaddafi took risks from 2003 when he helped negotiate the surrender of weapons of mass destruction that led to Libya's opening to the west, then helped free the four Bulgarian nurses and Palestinian doctor being held on bogus charges of infecting children with Aids (in Benghazi), and played a key role in negotiating the Lockerbie settlement. He was also instrumental in the release of Hakim Belhaj from a Libyan prison where Muammar Gaddafi had dumped him at the request of the US. Belhaj is the militia leader and former al Qaida member who took Tripoli during the summer.
Though the media still refer to Saif Gaddafi as his father's "heir apparent", Saif forcefully refused that role, insisting he would never take a position that was not subject to elections, turning down roles offered by his father at some peril.
In truth, the anomaly is not what Saif Gaddafi did before the revolution, but what he did once it began – abandoning nearly a decade of studies and turning his back on the risky reform work he had done. But even during the insurgency, and despite his Michael Corleone-style turnaround, Saif Gaddafi still sought to find a peaceful way out. He reached out to South Africa, to the Turks and to others with schemes that would force his father to step down but let him retire in Libya. Nonetheless, in aligning himself with family and clan, he was destroying the hopes of peaceful reform he had once inspired.
The question remains precisely what Saif Gaddafi did do during the insurgency. Was he merely a cheerleader for the regime, or was he giving orders? His brothers Mutassim and Khemis commanded brigades engaged in brutal deeds. What of Saif? My guess is that the evidence here will be more circumstantial than definitive.
No one who watched Muammar Gaddafi being killed by his captors can avoid feeling that procedural justice was being defiled even as a certain historical justice was being meted out. As for his son, Saif Gaddafi may deserve prison for what he did during the insurgency, but for a decade his heart was on the side of reform and democracy. Unless there is compelling evidence of direct orders to kill civilians or of command over troops involved in killing, he does not deserve a death sentence. The people of Libya today rightly cry for justice, but if they are just they will recognise that there is no simple formula in this case.
By Benjamin Barber, a senior fellow at the US public policy research thinktank Demos, the author of Strong Democracy; Jihad vs McWorld; and Consumed: How Markets Corrupt Children, Infantilize Adults and Swallow Citizens Whole. He resigned from the governing board of the Gaddafi Foundation in February 2011.