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
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