Getting Qaddafi to The Hague: The Case for ICC Prosecution

There's more than just the fate of Libya's former leader at stake

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With the collapse of Muammar al-Qaddafi's regime in Libya, attention has naturally turned to bringing the former strongman to justice.

But where?

In late June, the International Criminal Court (ICC) issued an arrest warrant, citing the dictator's crimes against humanity. Self-styled foreign policy "realists" responded with angst, predicting the specter of prosecution would only prolong the conflict, by eliminating the possibility of a negotiated settlement. The Internationalist rejected this alleged peace-justice trade-off, predicting the warrant would only hasten the collapse of his political support. (Future historians will have to sift through the record to see who was right).

The hot debate now is whether the ICC is the proper venue for holding Qaddafi to account--or whether a national, Libyan-owned judicial proceeding should take precedence. Here's one vote for transferring Qaddafi to The Hague as soon as he's apprehended.

Whether domestic or international tribunals are better at delivering justice and accountability for atrocities remains a bone of contention. Over the past two decades, the international community has experimented with different models. These include international tribunals, including the ICC and, beforehand, the ad hoc International Criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR); various domestic tribunals, such as Argentina's for crimes committed during the "dirty war"; and a variety of "hybrid" institutions, such as the Special Court for Sierra Leone (which relied on judges from Uganda, Northern Ireland, and Samoa but occurred in the country) and the Khmer Rouge Tribunal for Cambodia (which had a mixture of national and international judges).

There is much to be said for relying on domestic courts to address crimes committed in the territory of the state in question. All things being equal, such proceedings are more likely to be perceived as legitimate by the country's population, while reinforcing the rule of law and helping to bolster national legal institutions and systems. The administration of George W. Bush repeatedly advocated for the national approach on these grounds--a stance reinforced, of course, by its animus toward the ICC. 

The official U.S. government position appears to be that Qaddafi's legal fate rests in the hands of Libya's Transitional National Council (TNC). The U.S. permanent representative to the United Nations, Susan E. Rice, declared on Tuesday, "The Libyan people will have to decide whether to try Muammar al-Qaddafi themselves for crimes against his people, or surrender him to face justice before the ICC." What the TNC will ultimately decide is unclear. The same goes for Saif al-Islam, Qaddafi's son and Libya's former de facto prime minister, who also faces an ICC arrest warrant and remains at large, for now. "Everything is possible, it is up to the TNC to decide," TNC envoy to Paris Mansour Saif al-Nasr stated on Monday, "It is possible that he [Saif] will be handed over to the ICC but it's also possible he won't."

The problem, of course, is that a country must have a competent judicial system to undertake such trials in an unbiased and professional manner. The Rome Statute of the ICC accepts this logic, by embracing the principle of complementarity. That is, the Court can claim jurisdiction on one of only two conditions: when the country lacks a functioning judicial system, or when state authorities have manifestly failed to carry out a credible investigation into alleged atrocity crimes.

Presented by

Stewart M. Patrick is a senior fellow at the Council on Foreign Relations (where he writes the blog  The Internationalist) and Director of the Program on International Institutions and Global Governance.

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