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.
But is incapacity a good enough reason to take over Libya’s case against al-Islam? Asking if al-Islam’s case meets the technical requirements of ICC jurisdiction misses the point. If the country’s legal system is so troubled -- and it is -- then the world should direct its attention to fixing Libya’s courtrooms, prisons, and police stations, rather than look to a trial in The Hague that does nothing to address Libya’s deeper problems.
It is worth considering the court’s reasons for keeping the case. They are an exercise in abstract internationalism: justice for The Hague’s sake.
Much of the ICC’s recent 91-page decision is dedicated to considering whether Libya’s case against al-Islam is “substantially the same” as the ICC’s. The ICC has complementary jurisdiction, which means it can step in only if a state is unable or unwilling to try someone. But once a case enters the ICC system, the court raises the bar. It essentially says to countries like Libya, “We now have a case, so if you want to take it back, yours must be substantially the same.”
This is doctrine read through the looking glass. Lost in tests of similarity is the obvious proposition that the ICC was originally supposed to be a backstop for failed, fake, or nonexistent prosecutions. It is the ICC that needs to demonstrate the necessity of its interventions, not the other way around. But that is not how institutions reason once they have a case on the docket and the bit in their mouths.
The Libyan case differs for good reason: The ICC’s charges cover only a limited range of war crimes and crimes against humanity committed after February 2011. Libya’s case covers broader timescales and issues, such as “incitement to civil war” and financial crimes, in a trial that includes 37 other officials of the former regime. In focusing solely on how well the Libyan investigations fit with its own, the ICC misses the importance for Libyans of conducting a trial that vindicates the full range of damage wrought by the Qaddafi clan over 40 years. Instead, the ICC acts, and then looks to see if Libya has played copycat well enough.
The implication is that Libya must not only emulate the ICC trial but also reform its entire system to meet the ICC’s standards. The court’s decision, echoed in analyses from groups like Amnesty International and Human Rights Watch, is shot through with (accurate) critiques of procedural justice in Libya: difficulties securing counsel; accusations of torture, detailed in a new UN report; applications of sharia law that contradict human rights. In particular, the court seems fixated on the fact that Libya has not treated its victorious revolutionaries and former members of the defeated regime equally. And concerns about the death penalty run through the decision like a shudder.
But the possibility of Saif al-Islam receiving the death penalty hardly suggests that the Libyan state is not serious. Although shoddy procedures and harsh justice in Libya raise real human rights concerns, they also indicate that the new regime is actually very determined -- and able -- to punish the same people the ICC wants to try, and more besides. Yet the ICC’s decision does not even consider Libya’s willingness to try al-Islam. Libya is unable to conduct a trial up to international standards, the thinking goes, and so further inquiry is unnecessary. But willingness should matter; it should matter that the Libyan people want to bring their own oppressors to justice, on their own terms.
FROM DAMASCUS TO MOSCOW
A choice between two versions of justice -- Libya’s and The Hague’s -- is unavoidable. Given the almost geologic pace of international trials, Libyan justice would suffer an irreversible delay if Libya had to wait for the ICC to finish trying Saif al-Islam. Meanwhile, the fight over an ICC trial is itself a distraction: A legal and political system stretched as thin as Libya’s could spend its sparse resources far better at home, rather than formulating briefs for The Hague or planning reforms designed to appease a foreign court.
But the strongest argument against the ICC points out what it cannot do. The court’s decision was based on Libya’s incapacity to try al-Islam, but a trial in The Hague would not do anything to solve the political instability causing that incapacity. It would not improve governance in Libya, stabilize Libyan society, or achieve any of the many, many things more necessary to Libya’s progress than legal justice for its own sake. By ignoring Libya’s willingness to try al-Islam, the ICC would do nothing to strengthen the same justice system that it criticizes as unfit, and may weaken it further.
All of this is happening because the UN Security Council referred the situation in Libya to an ICC prosecutor all too willing to make a case. The Libyan referral is a study in the risks of international judicialization, of a tool pulled out in a moment of crisis that cannot be put away. In theory, the court must be given autonomy to operate untainted by politics. But the court is not disinterested -- it wants this case -- and it is not outside politics, which pervaded the Security Council’s decision to refer the case in the first place.
It is not even clear that the tool was useful when it was first used: Judicial stigmatization of the Qaddafi regime was not a prerequisite for military intervention but a symptom of the will to intervene. Had the United Nations not interposed the ICC into the crisis, we would not now be worrying about matching Tripoli’s limited resources to the austere processes of a distant court. We would be focusing instead on helping Libyans get things right in Libya.
This is not a problem in Libya alone. The Arab Middle East is in the throes of a liberating and terrifying transformation, in which entrenching -- discovering, really -- the rule of law is critical. But that process must evolve authentically. A rigid judicialization of politics too often distracts from needed reforms and the give-and-take of negotiation. It can even complicate harder interventions when they are needed.
That lesson is readily apparent in Syria, from which the ICC has been largely absent: Prioritizing formal legal justice will not end that crisis, or do anything except harden the regime's resolve and narrow everyone's options. Syrian President Bashar al-Assad may well deserve to go on trial for using chemical weapons, but what if the price of trial is another six months of war? There are lovely dachas outside Moscow; if the day comes when Assad is ready to board a plane, the world should not insist its destination be The Hague.
THE COURT OF CAN’T
In the meantime, though, the ICC is tilting toward an incapacity standard, an ever-sliding scale giving itself more leeway to keep the cases it wants. In Libya, but also in Uganda and Kenya, the preference for national proceedings looks increasingly formalistic -- a false complementarity. So what can be done? Quite simply, parties to the ICC, in addition to interested, influential non-parties such as the United States, should encourage the court to lean the other way.