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Libya's Home Court Advantage
TIMOTHY WILLIAM WATERS is Professor of Law at the Indiana University Maurer School of Law. He helped prepare the indictment of Slobodan Milosevic, and his edited volume on that trial will be published in November by Oxford University Press.See more by this author
Maybe Saif al-Islam al-Qaddafi, the son of the Libyan dictator Muammar al-Qaddafi, will go on trial soon, as Libya’s government has repeatedly promised. Then again, maybe not: This past week, the militia holding al-Islam refused to hand him over to the courts in Tripoli.
Legal justice is hardly assured in Libya these days, although the other, rougher kind sometimes is: Al-Islam’s lawyers have warned that their client faces the death penalty or a lynch mob, with no due process either way. That is why they support the recent decision by the International Criminal Court (ICC) to continue its own case against him. And that is also why, despite protests from Libya, the Hague Court’s decision might seem welcome, offering the chance of a real trial in a real court with a full range of procedural protections.
But it’s not, and the reasons why should instruct us in the dangers of judicializing global politics, particularly for states and societies at risk.
Saif al-Islam, who spearheaded the violent resistance to revolution in 2011, was indicted after the UN Security Council referred his case to the ICC in the midst of the fighting that toppled his father’s regime. He was captured by a militia based in the Libyan city of Zintan, where he has been held ever since, beyond the reach of the Libyan state and The Hague. (He recently appeared before a Zintan court on unrelated charges, but that case was adjourned until December.)
The basis for the ICC’s decision to continue with its own case was Libya’s inability to try al-Islam. To be sure, the Libyan courts’ lack of capacity is undeniable -- they almost surely meet the Hague Court’s standard requiring a “total or substantial collapse or unavailability of [the] national judicial system” for a case to be admissible.