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Tough arbitrator picked for Libya tribunal

Elizabeth Wilmshurst is known for her integrity and independence

Switzerland has chosen an "iconic" British lawyer to sit on a tribunal probing the arrest of Moammar Gaddafi's son.

Elizabeth Wilmshurst came to public notice in 2003 when she stepped down from the British Foreign Office in disagreement over the legality of the Iraq war. Two years later the details of her resignation were made public under the Freedom of Information Act and reignited controversies over the war.

Wilmshurst, now an international law specialist at the Royal Institute of International Affairs at Chatham House and a professor at University College London, will represent Switzerland on a three-party tribunal that is being set up to review the 2008 arrest in Geneva of Hannibal Gaddafi and his wife for assaulting two domestic employees.

According to an agreement signed in Tripoli by the Swiss president, Hans-Rudolf Merz, and the Libyan prime minister, al-Baghdadi Ali al-Mahmoudi, on August 20, each country must designate an independent representative to the tribunal. The tribunal will sit in London and be presided over by a third arbitrator.

The Swiss foreign ministry announced Wilmshurst had been chosen for her “wide reputation as an experienced and independent expert on international law”.

Philippe Sands, a colleague of Wilmshurst at University College London, where he heads its Centre for International Courts and Tribunals, told it was hard to think of a more qualified lawyer for the subject.

“Ms Wilmshurst is an outstanding international lawyer, of fearless independence and total integrity. I have known her for many years, and have no doubt she will approach her task with great care, applying the diligence so many of us have come to admire in her.”

“Perfect lawyer”

He noted that her resignation from the Foreign Office in 2003 “imbued her with a certain heroic, even iconic, status among many observers of that period”.

In her resignation letter Wilmshurst had said it was unlawful to use force in Iraq without a second Security Council resolution and that military action on such a scale amounted to the “crime of aggression”. Such action was “detrimental to the international order and the rule of law”, she had stated.

“She faced a difficult situation with characteristic discretion and modesty, adopting a principled stance without seeking to draw attention to herself,” Sands added.

Nadim Shehadi, a colleague from Chatham House, told Le Temps newspaper Wilmshurst was a “perfect lawyer” with clear analytical skills, but nonetheless “someone who can say no”.

The appointment has reportedly been backed by the Libyans. According to the Libyan foreign ministry website, British lawyer Saad Djebbar has been appointed to arbitrate for the North African country. Djebbar is the deputy director of Cambridge University’s Centre for North African Studies and has worked with Libya on the Lockerbie bomber case.

Loose ends

Relations between Switzerland and Libya have been strained since the Gaddafi couple’s detention in Geneva last July.

The couple were freed after two days in custody on bail of SFr500,000 ($470,000) and the charges were later dropped. The two employees were compensated.

However, Libya responded by cutting air links with Switzerland, threatening to suspend oil deliveries, withdrawing assets worth an estimated $5 billion (SFr5.3 billion) from Swiss banks, ending bilateral cooperation programmes and placing restrictions on Swiss companies. Two Swiss businessmen have also been detained in the country for over a year.

Merz travelled to the Libyan capital on a mission to “normalise” relations, and in a move that prompted a national outcry at home, apologised to the Libyan authorities for the “unjustified and unnecessary” measures by the authorities in Geneva against Hannibal Gaddafi.

The two countries signed an accord under which they agreed to set up the independent tribunal to look into the case. Mahmoudi also gave written assurances that the two Swiss nationals would be freed by September 1.

A Swiss government jet was sent to Tripoli last week in the hope of bringing the men home, but the plane returned to Bern carrying only their luggage. Although they have received their passports and exit visas, a Libyan official told Swiss television on Monday that they still had to go before the state prosecutor to face visa violation charges.

Media reports on Tuesday say that Libya is now demanding that 500,000 Libyan dinars (SFr423,000) be paid by each man before they are allowed to return to Switzerland. It is not clear whether the money is supposed to be a fine or bail.

There has been no official Swiss comment on this alleged demand.

Jessica Dacey,

Elizabeth Wilmshurst is a senior fellow in international law at the London non-profit think-tank Chatham House (formerly known as the Royal Institute of International Affairs).

She has been a visiting professor of international law at University College London since 2003.

She served as deputy legal adviser at the British Foreign and Commonwealth Office, from 1999 to 2003.

She stepped down from that post in the run-up to the Iraq war, after 30 years working in the Foreign Office and the Attorney General’s Office.

Her resignation letter was made public in 2005 after a request by the BBC under the Freedom of Information Act.

In it she expressed her fundamental disagreement with the advice given to the British government about the legality of the war in Iraq.

She believed it was unlawful for Britain to use force in Iraq without a second Security Council resolution and that military action on the scale foreseen by the government amounted to the “crime of aggression”.

Wilmshurst’s teaching and research expertise are in the area of international law, the use of force, international criminal law, the law of the UN and its organs, consular and diplomatic law, State and sovereign immunity and international humanitarian law.

She has co-authored several books on international criminal law.

She has been appointed a CMG, Companion of the Order of St Michael and St George, by the Queen.

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