THE BLOG
09/16/2015 09:39 pm ET Updated Dec 06, 2017

Is Being a Gaddafi a Crime?

Had I not been entrusted in October 2014 by Safia Farkash Mohamed, Muammar Gaddafi's widow, to defend the future of her murdered son's minor child and wife, I would have most certainly shared the prevailing perception about anyone who happened to be a Gaddafi. And, most possibly, I would have rather dismissed than considered any reference to such family members' basic human rights as exaggerated, biased and elusive.

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Yet, four years after the elimination of any threat to peace that the UN Security Council considered the former Libyan leader and his country represented, four years after his murder while in rebels' custody, one of Muammar Gaddafi's most prominent sons, Mutassim, seems to remain, post mortem, a threat to international peace and security. His name is still on the list of the UN Security Council Resolution 1970 on Libya (26 February 2011) annexes re "travel ban" and "freeze of assets." And for this reason, the family he created without time to enjoy it, has to endure poverty, in hiding, in anonymity, in constant risk of extinction.

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The UN Security's Council responsibility is to promote and protect international peace and security (Article 24, para 1, Chapter V, Charter of the United Nations). UNSC Sanctions are applied to persons that are considered to be a threat to international peace and security. No other reason than such a threat may explain why Mutassim Gaddafi's name is still included, long after his confirmed death, in a list among persons who can neither "travel" nor "use financial resources." Unless any dead man can travel, or spend money, unless Mutassim still represents a risk to international peace and security, he has long ceased to be "a person" eligible to any sentence reserved to the living, let alone sanctions.

UNSC SANCTIONS COMMITTEE MALTA MONITORING BOARD

A few weeks ago the Maltese Government Sanctions Committee Monitoring Board, after three months of deliberations, refused to Mutassim Gaddafi's heirs and his estate's court appointed judicial curator the explicitly reserved right (L.N. 69 of 2011, National Interest Act of Malta, United Nations Sanctions (Libyan Arab Jamahiryia) Regulations, 2011, para 8 (I) 4) to unfreeze a few tens of thousand of dollars for the payment of arm's length costs and the protection of such asset. The Board deferred such unfreezing despite the fact that neither same, nor the UN Security Council are tribunals. The Board did so while fully aware of a shady claim initiated before the Courts of Malta on September 2014 by a "government agency" based in Tripoli, a city controlled by "Libya Dawn."

Despite the reasons of such a belated effort, way past the two year transcription term provided by the applicable law, it has been proved that the applicants scoped for the case against the sole private asset of Mutassim Gaddafi's heirs to be won undefended. The plaintiffs were at least in hope, if not in certainty, that Mutassim's heirs would either not find out, dare, or be able to defend their rights in a timely manner.

That would not have been the first time that a Gaddafi asset in Malta perished undefended.

On September 2011, while another family member, not included in the UN Sanctions List, had just left Libya, an offshore company under the name of Baltic Investments Ltd filed a claim against him regarding an alleged, non- documented, loan. On 6 December 2011 a Maltese lawyer representing himself as verbally authorized by the particular Gaddafi family member - at the time incommunicado - admitted the claim, this leading to the stripping of that family member' s €498,872 and USD 313,932 savings.

Unfortunately for those who conceived the plot, the defendant resurfaced alive, denied any such transaction or authorization to have ever taken place and resolved to proceed to criminal and civil actions against any and all involved in the scam.

One may say that no matter what the UN's targets are, Malta is a small country that needs to keep a good relationship with Libya at all times and under any and more regimes, even if more claim to be the lawful government at the same time.

The fact that the lawyer who presented himself as the Gaddafi family member's orally instructed attorney later became an officer of the Maltese Nationalist Party, therefore a person who may not be reasonably expected to rely on verbal instructions in order to admit to any claim against any client, may be random. Even if it isn't, it is a matter for the Courts of Malta.

The fact that the local representative and signatory of Mutassim Gaddafi's last in line private holding company in Malta during the attempt to seize the company assets by surprise was his accountant and a former Treasurer of the Labor Party who was arraigned and granted bail on 18 August after pleading not guilty to a number of charges on a different case - including fraud and falsifying documents - may be also random. Even if isn't, it is also a matter for the Courts of Malta.

The fact, though, that the UN Security Council, an international organization established with the scope of safeguarding international peace and security, is not automatically deleting a dead man's name from a list of sanctions intended to protect international peace and security, while the local government Sanctions Committee Monitoring Board refuses to two women and a minor child the means to protect their sole asset from a shady attempt of seizure, can be hardly considered to be a coincidence. Such a case shouldn't require the attention of any Court of Law.

The story about "Gaddafi's billions," although highly "popular," remains challenged. Despite the fact that no misappropriation of any state assets has been proven to date and although Libya state assets allegedly embezzled by Colonel Gaddafi and his administration seem to have been all accounted for, either in Libya's Central Bank or among the Libya Investment Authority's holdings, the story remains a rather exciting one. Naturally, a "treasure hunt" story can be way more interesting to the general public than the true story: the frustration, anger and embarrassment of a woman who - after having lost a husband and three sons, in agony for the future of her eldest son who is sentenced to death in a trial described by Human Rights Watch as being "undermined by serious due process violations" - with less than a thousand US Dollars to spare, is still being presented as allegedly worth billions.

Although my colleagues and I are just doing our job as lawyers, it is hard to understand how so many Libyans and Muslims that prospered and flourished solely on the grounds of personal relationships are not only indifferent to the calamities of innocent women and children but demonstratively hostile to them.

We have handled numerous cases in prosecuting fraud, terrorism and money laundering and so, we are hardly naïve. Yet we are rendered speechless at the gross double standard that international organizations can afford - under the rule of law - towards women and a minor child of the Gaddafi family in Libya today, compared to the laxities extended by international agencies, for instance, to chieftains of terrorism, espionage and money laundering in my country and elsewhere in the not so distant past.

The issue of collective responsibility, particularly regarding crimes against humanity, was resolved during the Nuremberg Trials. The same issue has been addressed again in a similar way by the UN a few times too many. The old Greek political system approach of «Μαζί τα φάγαμε» (i.e. "We gulped it together") has proved to be misleading.

The principle of the "Rule of Law" renders the penalization of any person on grounds of religion, skin color, nationality, gender, political beliefs, or family ties, unacceptable. When such a penalization, though, is afforded by the very same International Organization that was formed to defend human rights and peace, it is wrong.

The civilized world is considered to be civilized as long as the rule of law remains a basic principle. As long as the rule of law applies continuously to any and all and to friend or foe. Let alone women as mothers, and minor children.

To those who would say that this is just another lawyer trying to make money, I will avoid presenting the list of costs, or even bring forward the excruciating income tax system in Greece, particularly after the recent third bailout agreement.

I will simply remind the cynics the words of Plato (Menexenos, 347a): «πασα τε επιστήμη χωριζομένη δικαιοσύνης και της άλλης αρετής, πανουργία, ου σοφία φαίνεται » ("Any authority exercised without justice and virtue becomes cunning and is not wise").

And will also challenge anyone concerned with this matter to answer this question:

Is being a Gaddafi a crime?