The weekend capture of Moammar Gaddafi’s son Saif al-Islam and Gaddafi’s former intelligence chief, Abdullah al-Senussi, has precipitated a debate between Libya’s new government, the National Transitional Council, and international human rights groups over whether the two should be prosecuted by a Libyan court or turned over to the International Criminal Court in The Hague. International human rights advocates argue that Saif and other Gaddafi regime officials cannot receive a fair trial in that country. While these groups have cause for concern, the Obama administration and the international community should leave the decision to the Libyans. They should offer to assist the new Libyan government rather than try to supplant it.
Like many Arab countries, Libya is not a party to the 1998 treaty that created the ICC — known as the Rome Statute — and is not subject to the general criminal jurisdiction of that court. But the U.N. Security Council’s February resolution referring the Gaddafi regime’s attacks on Libyan civilians to the ICC prosecutor for investigation and requiring “Libyan authorities” to cooperate with the court had the international legal effect of subjecting Gaddafi and Libyan officials to the ICC’s jurisdiction. And in June, the ICC indicted Gaddafi, Saif al-Islam and Senussi for murder and crimes against humanity, and issued warrants for their arrest.
The murky circumstances of Gaddafi’s death, which suggest that he may have been executed after capture by Libyan rebel forces, have prompted human rights groups to call for Saif al-Islam to be transferred to The Hague. Recalling the rapid show trials and executions of Saddam Hussein and senior Baath Party officials by the Iraqi High Tribunal, they argue that the Libyan opposition cannot be trusted to provide criminal trials that meet “international” standards.
After 42 years of Gaddafi’s authoritarian rule, Libya lacks an independent judiciary and criminal law enforcement system. It could take a substantial period for fair judicial institutions to be established. The new Libyan government also says it wants to preserve the death penalty as an option, and this would be anathema to European countries and many human rights groups.
National Transitional Council officials insist that Saif al-Islam and Senussi must be tried in Libya because “local justice is the rule and international justice is the exception.” The pair will be given a fair trial, they argue.
As the recognized governing authority in Libya, the council is obliged to cooperate with the ICC, but it is not required to hand over Saif al-Islam for trial. Libya’s new government has the right under the Rome Statute to prosecute Saif al-Islam and Senussi if it chooses. The ICC was established to “complement” the criminal jurisdiction of national courts, not to replace them; it has jurisdiction only when a country’s domestic courts are unwilling or unable to carry out a prosecution. A Libyan trial of Saif al-Islam and other regime officials may be more likely than an international tribunal in a remote location to facilitate national reconciliation and promote justice for the numerous Libyan victims of Gaddafi’s tyranny. ICC prosecutor Luis Moreno Ocampo, who met with NTC officials Tuesday in Tripoli, has wisely said that he is prepared to defer to a Libyan trial.
It is somewhat ironic that human rights advocates who called for international intervention to help the Libyan people fight Gaddafi now believe that Libyans cannot be trusted to prosecute Gaddafi officials. In their view, justice is best meted out by international courts.
To the extent that a new Libyan government lacks the capacity to hold fair trials, the international community, human rights groups and the ICC itself should offer technical and financial assistance to build that capacity for these and future prosecutions. Turning Saif al-Islam and Senussi over to the ICC will do nothing to help build a fair and independent judicial system in Libya over the longer term.
Years ago, the United Nations, human rights groups and many European governments rebuffed requests for help from the post-Saddam government in Iraq in conducting the trial of Saddam and his henchmen, ostensibly because of opposition to the death penalty (but more likely out of pique over the unpopular Iraq war). This was a missed opportunity to assist in bringing justice for Saddam’s human rights violations and developing the rule of law in Iraq. The international community should not repeat the same mistake in Libya.
The ICC has an important role to play in dispensing international justice, and the United States should support its work in appropriate cases where national judicial systems are unavailable. But if it is the will of the Libyan people to try Saif al-Islam and other former regime officials, the Obama administration and the international community should support their efforts.
The writer is a partner with Arnold & Porter LLP and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He was the State Department’s legal adviser from 2005 to 2009.