2011-04-03 Support Eman al Obaidi: The aggravating circumstances of Gaddafi’s liability for rape as a war crime.

Amidst the cacophony of war crimes and crimes against humanity in Libya perpetrated by forces loyal to Muammar Gadaffi - which this writer finds unbearable - (and for which the command principle at least holds him ultimately responsible) including murders, torture, bombing and artillery destruction of civilian infrastructure and the like, the case of Eman al Obaidi stands alone as one of particular importance as well as nauseating repugnance.

Firstly we must acknowledge the presumption of innocence within the particular context of Eman’s allegations. This was brought to my attention by a tweet from Bianca Jagger who said on 28th March:

WHY ALLEGED? How dare the media question her veracity RT @latimes: Libyan woman who alleged rape remains missing http://lat.ms/fsp9yz>

I have the most enormous respect for Bianca Jagger and found her vehement statement on this matter appropriate on the face of the circumstances in the arena of probabilities but not necessarily in the arena of presumptive law. In one respect the presumption needed further explanation: the LA Times headlines clearly were missing some nuance in that their traditional headline using the word ‘alleged” implicitly acknowledged the presumption, but they erred in not commenting contextually – the probability arena.

The answer is of course is that the tradition of using the word ‘alleged’ in deference to the presumption of innocence does not of itself automatically raise a presumption that the complainant lacks veracity. On this the criminal justice system (and the media generally) are neutral before a trial: the accused is presumed innocent and the complainant is inherently presumed to be telling the truth until a court decides, as it must, whether the prosecution has discharged its burden of proof to the criminal standard, beyond reasonable doubt: whether the accused is guilty or conversely, whether the complainant lacked veracity in some form or other, which raised at a minimum, that “reasonable doubt” for a not guilty verdict.

We also take on board the possibility that an acquitted accused might still be guilty, which is one of the reasons that I rather like the Scottish additional verdict, (apart from guilty/not guilty) ie “not proven”

The presumption of innocence is fundamental to our western criminal justice systems, and is a human right in most jurisdictions, notwithstanding a howling and overwhelming majority of public opinion egged on sometimes by media generated moral panics, ie “Axe Murder Horror” which tends to ignore the presumption of innocence when the media name Mr X as “helping the police with their enquiries” and Mr X is a well known member of the criminal fraternity.

Can the presumption in any way be modified within the context of what can be characterised as a civil war? Well, yes and no.

The presumption must always stand despite a mountain of evidence for guilt which ultimately a duly constituted court of law – not the public gallery - must decide is sufficient or not for a conviction.

It can be said, and should have been said by the LA Times that the context of Eman al Obaidi seeking out journalists in Gadaffi terroritory at great personal risk (as was seen when the regime’s goons came out from behind their hotel waiter’s aprons and civilian uniforms to kidnap her) meant that the probability of the truth of her allegations was extraordinarily high or alternatively almost certainly true, especially so for what followed.

As we saw in the Wikileaks scoop “Collateral Murder,” by any reasonable interpretation of war crimes/crimes against humanity means the probability of conviction is likewise, extraordinarily high. Julian Assange himself well understands the presumption, being on the record as saying (if I recall correctly in relation to that video) words to the effect that it is a matter for a court to decide.

We can always say as individuals, and comply with judicial norms, that there is a prima facie case to answer, ie the evidence, on the face of it, is sufficient for a charge to be laid that is beyond mere suspicion.

By comparison, the allegations against Julian Assange by the two Swedish complainants, given the exculpatory sms/tweet messages and original narrative statements to police would most likely not pass a committal process in Australia or the UK, ie a prima facie case that would not pass muster.

The point I wished to develop in the case Eman al Obaidi is in the area of victim blaming. The bribes offered for her to retract the allegations in the meantime do not inspire confidence.

That offer reinforces the probability that there is, to put it mildly, even more substance to the allegations, if that were possible.

Victim blaming is a common form of rationalising criminality which defence lawyers such as yours truly see from time to time in defending clients accused of domestic violence. “She asked for it” and “If she hadn’t said that, I wouldn’t have belted her” are two not so uncommon refrains heard under client/lawyer privileged communications.

In the case of the Gaddafi regime, a not so subtle variation, in making the allegation, (the aggravation of a crime already committed to my stated level of highest probability) She is now being charged with what appears to be a form of criminal defamation:

A LIBYAN woman who claimed she was raped multiple times at a government-run checkpoint has been charged by the Government, a spokesman says.

"I heard that the attorney general brought her in for questioning because she is now not just the accuser, she is the accused. There is a case against her," Moussa Ibrahim said, adding that Eman al Obaidi offered no proof of her claims.

"She says four people kidnapped and raped her. One of them is the son of someone in the state. That is hardly political - the son of someone in the state is a human being," he said.

"Now the four guys are having a case filed against her because instead of going to a police station and filing a case against them, she went to the media and exposed their names. Now their honor is tainted, their families black-named, and this in the Islamic law is a very grave offence."

A few preliminary observations on that. Rape as a methodology of intimidation and as a political weapon in times of war is well documented as the recent example of Yugoslavia demonstrated. She didn’t go to the police first. So what. Going to the police first (given the predilictions of the Gadaffi regime for survival at any cost of murder and mayhem) would have ensured she disappeared without trace likely after some more rape and torture. Going to the hotel and telling her story to international journalist was arguably the one way, the only way that she has ensured her survival up until now ever since she made the world aware of her story. She offered no proof of her claims? Since when was it ever incumbent on a complainant to assemble a prosecution’s case Mr Libyan prosecutor?

“Now their honour is tainted” the regime says, a finding of guilt on Eman that indicates already the “justice” that Gadaffi’s regime will impose. “ A very grave offence in the Islamic law” which again pre-supposes her allegations are false. Islamic law takes a dim view of rape as well but as we can see here, as we have seen from recorded history, twisting religion for the benefit of a political cause, justifying the most horrendous crimes in the name of religion is a tedious and sickening familiarity.

Of course in a western context a false allegation attracts both criminal sanctions (if a demonstrably false complaint is made to police) and raises liability in civil law for damage to reputation. But here the Gadaffi regime excels itself in dishonesty, disengenuousness and reprehensible conduct. By charging Eman al Obaidi with defamation they clearly intend to intimidate her in retracting the allegations and if they don’t succeed in that, they will to the bitter end persecute this woman, blame her as the victim, using any excuse, including religion to further their cause.

Citizens from all over the world, let us not forget this incredibly brave woman. We need to keep her name and spirit alive in the public arena as her very survival is at stake, but also I would argue she is a symbol for the Libyan resistance to tyranny.

Western standards should not be applied to Libian tyrany

Eman al Obaidi could have no expectation that "going to the police" would provide her with any safty. I was very disapointed by the feeble resistace offered by the journalists.

"Going through the proper channels", is a cowardly cop out, and a certain recipie for failure when dealing with any authoritarian structure.

Smell the roses folks, in any contest where the 'opponent' is allowed to set and even change the rules, Who is going to Win??

Smells like Jessica Lynch to me

There are too many scripted incidents, babies in incubators, jessica lynch, death of neda, for this story to treated without some level of sceptism.

She seems to have changed her story. Her first version was she was held at some checkpoint and raped by 15 soldiers for 2 days. Her second version was she named four men, at least one who was the son of a government official. It is worth reflecting that should the insurgents get to Tripoli on the back of Coalition air power, she has pretty much signed a death warrent for these 4 individuals. These are high stakes.

On the positive side, Julian "I'm busy, there are two wars I need to end" Assange now has three wars to end.

Would you like to have your daughter in the hands of Gaddafi?

The gapping hole in your theory is that this poor woman was allowed to fall back into their hands.

Your armchair skepticism reeks!

On Jullian Assange; Please don't critisize him if you have nothing to contribute personally.

The sorry fact is:

In a vain attempt to maintain the status quo and haul this world from the brink of monumental changes, M. Gaddafi is no more likely to be punished for 'War Crimes' than is G W Bush or any of the others.

There are too many vested interests, interlocking directorships, and skeletons in the closets, for the rights and welfare of common people to be considered important.

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