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A moment of sudden, bloody vengeance ensured that Muammar al-Qaddafi, Libya’s longtime dictator, would never face justice in a court. But his son Saif al-Islam has been captured, and will face trial. The only question is where: in Libya, or at the International Criminal Court in The Hague.
The ICC established its claim to hold the trial when it issued arrest warrants in June against Colonel Qaddafi, Saif al-Islam, and the former Libyan intelligence chief Abdullah al-Senussi (who remains at large). Now that Libyan forces have captured al-Islam, advocates for the ICC are calling for his trial to take place in The Hague or for the ICC to play a key role in any prosecution in Libya. But prioritizing the ICC’s involvement mistakes the interests of an institution for the values and victims that justice should serve. Libyans were grievously harmed by the Qaddafi regime for nearly half a century; it is to them that Saif al-Islam should answer.
As with all its cases, the ICC brought charges against al-Islam under a feature of its jurisdiction known as complementarity. This allows the court to try cases only if the state in which the crimes were committed is unable or unwilling to do so. Although Colonel Qaddafi certainly would not have tried his son, the new government hopes to do exactly that.
Under complementarity, the ICC could cede its authority to try Saif al-Islam to the new government in Tripoli. Indeed, ICC Chief Prosecutor Luis Moreno-Ocampo visited Libya in late November and indicated that Libya could conduct its own trial with the assistance of the ICC. “[W]e requested a warrant because Libyans couldn’t do justice in Libya,” he said on his visit. “Now, as soon as Libyans decide to do justice they could do justice and we’ll help them to do it.” This accommodating approach is pragmatic; Moreno-Ocampo knows that he needs the cooperation of Libyan officials (and the tribal militia holding Saif al-Islam) to have any hope of influencing the process. When he arrived, for example, Libya’s justice minister, Mohammed al-Alagi, announced that, “in a nutshell,” Libya would not relinquish Saif al-Islam.
But Moreno-Ocampo’s moderate stance masks some harsher realities about international justice. Upon arriving, he reminded the new government that any proceedings in Libya would have to meet the court’s standards for a fair trial. For example, Libya still maintains the death penalty, while the ICC does not; Amnesty International has suggested that to meet ICC regulations Tripoli might have to abolish it. Human Rights Watch, meanwhile, has argued that Libya would have to reform its entire judicial system to meet the ICC’s requirements. And when it comes to determining if Libya meets the court’s standards, it is the ICC’s own judges, not Libya, who decide.
The logic behind the ICC’s effective priority rests on the abstract notion that the most terrible crimes affect all humanity equally, and that therefore all humanity has an equal claim to sit in judgment. Place and identity matter: the Qaddafi regime’s acts were first and foremost crimes against Libyans. To speak of “crimes against humanity” -- as if the offense were shared in full moral measure -- is to deny the particular suffering of the Libyan people in a way that is, paradoxically, inhumane.
Moreover, letting the ICC dictate the terms of trial would impose real costs on the Libyan people. To begin with, the ICC can try Qaddafi officials only for crimes that occurred after February 17, 2011; it cannot punish them for the 41 years of repression that preceded this year’s revolution. In addition, prosecutions in The Hague proceed slowly. The court, which formed nine years ago, is only now finishing its first trial (against the Congolese warlord Thomas Lubanga Dyilo), meaning that if the ICC case comes first, Libyans may have to wait for a long time before they can try Saif al-Islam themselves.
A trial in the ICC may also undermine the case’s ability to help build a new Libya. Experience from international trials for war criminals in Rwanda and the former Yugoslavia suggest that prosecutions conducted outside of the country where the crimes occurred are often ineffectual. There is little evidence of reconciliation in the former Yugoslavia, and Rwanda has often had a combative relationship with the international tribunal trying cases from its genocide. A trial for Saif al-Islam may have the same outcome in Libya; those loyal to the old regime may remain unswayed by even the fairest process, and victims may come to see the ICC process as imperial interference. Even if the ICC held its own trial on Libyan soil, it would still be far from true local justice. The sight of English-speaking judges listening to Arabic on headphones would leave Libyans doubtful that their stories were being told, much less understood.
These concerns do not negate the ICC’s formal jurisdiction over the case, but they raise questions about its legitimate role. The judicial system in Libya undoubtedly faces challenges, and the new government may prove unable or unwilling to conduct trials against members of the Qaddafi regime. But the potential reward of an honest trial in Libya -- the chance for Libyan society to heal itself through its own judicial process -- far outweighs the potential benefits of any international trial.
There are specific actions that the the international community can take to help Libya try Saif al-Islam itself. One option under the ICC Statute is for the Security Council to suspend proceedings in The Hague for one year, giving Libya time to rebuild and sending the court a clear message to back down. That option remains unlikely, however, since several members of the Security Council, such as the U.K. and France, are strongly committed to the ICC.
Even so, individual states can take their own measures to support a trial in Libya. They could first declare their support for Tripoli to prosecute Saif al-Islam, putting public pressure on the ICC to accede. They could also help Libya rebuild its judicial system, which would make it more difficult for the ICC to retain control of the case.
Finally, states across the globe could apply a version of complementarity to the court itself. They could make clear they will suspend cooperation with the ICC if it is unable or unwilling to defer to a newly free Libya. The court, which is heavily dependent on states for funding and enforcement, would take such a threat seriously.
The ICC has a role to play in bringing the Qaddafi regime to justice. The new Libyan government may prove unable or unwilling to fix the country’s judicial system or prosecute its own fighters who committed crimes. If so, the ICC can and should step in. But for now, the court should acknowledge that the Libyan people have the priority to try Saif al-Islam.
Courts are built to do justice, but to insist on trials in The Hague is to use justice to build a court. So let Tripoli try him: for the rest of the world, that should be justice enough.