Fair trials, but done Libya’s way Friday, 25 November 2011 00:57

By John B Bellinger III

The capture of Muammar Gaddafi’s son Saif Al Islam and Gaddafi’s former intelligence chief, Abdullah Al Senussi, has precipitated a debate between Libya’s new government, the National Transitional Council, and international human rights groups over whether the two should be prosecuted by a Libyan court or turned over to the International Criminal Court (ICC) in The Hague.

International human rights advocates argue that Saif Al Islam Gaddafi, Senussi and other Gaddafi regime officials cannot receive a fair trial in that country. While these groups have cause for concern, the Obama administration and the international community should leave the decision to the Libyans. They should offer to assist the new government rather than try to supplant it.

Along with many Arab countries, Libya is not a party to the 1998 treaty that created the ICC — known as the Rome Statute — and is not subject to the general criminal jurisdiction of that court. But the UN Security Council’s February resolution referring the Gaddafi regime’s attacks on Libyan civilians to the ICC prosecutor for investigation and requiring “Libyan authorities” to cooperate with the court had the international legal effect of subjecting the regime to the ICC’s jurisdiction. In June, the ICC indicted Muammar and Saif Al Islam Gadhafi and Senussi for murder and crimes against humanity, and it issued warrants for their arrest.

The murky circumstances of Muammar Gaddafi’s death, which suggest that he may have been executed after his capture by Libyan rebel forces, have prompted human rights groups to call for Saif Al Islam to be transferred to The Hague. Recalling the rapid show trials and executions of Saddam Hussein and senior Baath Party officials by the Iraqi High Tribunal, they argue that the new Libyan government cannot be trusted to provide criminal trials that meet “international” standards.

After 42 years of Gaddafi’s authoritarian rule, Libya lacks an independent judiciary and criminal law enforcement system. It could take a substantial period for fair judicial institutions to be established. The new Libyan government also says it wants to preserve the death penalty as an option, and this would be anathema to European countries and many human rights groups.

National Transitional Council officials insist that Saif Al Islam and Senussi must be tried in Libya because “local justice is the rule and international justice is the exception.” The pair will be given a fair trial, they argue.

As the recognised governing authority in Libya, the council is obliged to cooperate with the ICC, but it is not required to hand over Saif Al Islam for trial. Libya’s new government has the right under the Rome Statute to prosecute Saif Al Islam and Senussi if it chooses. The ICC was established to “complement” the criminal jurisdiction of national courts, not to replace them; it has jurisdiction only when a country’s domestic courts are unwilling or unable to carry out a prosecution.

A Libyan trial of Saif Al Islam and other regime officials may be more likely than an international tribunal in a remote location to facilitate national reconciliation and promote justice for the numerous Libyan victims of Gaddafi’s tyranny. ICC prosecutor Luis Moreno-Ocampo, who met with council officials in Tripoli, has wisely said that he is prepared to defer to a Libyan trial. It is somewhat ironic that human rights advocates who called for international intervention to help the Libyan people fight Gaddafi now believe that Libyans cannot be trusted to prosecute Gaddafi officials. In their view, justice is best meted out by international courts.

To the extent that a new Libyan government lacks the capacity to hold fair trials, the international community, human rights groups and the ICC itself should offer technical and financial assistance to build that capacity for these and future prosecutions. Turning Saif Al Islam and Senussi over to the ICC will do nothing to help build a fair and independent judicial system in Libya.

Years ago, the United Nations, human rights groups and many European governments rebuffed requests for help from Iraq’s post-Saddam Hussein government in conducting the trial of Saddam Hussein and his henchmen, ostensibly because of opposition to the death penalty. This was a missed opportunity to assist in bringing justice for Saddam Hussein’s human rights violations and developing the rule of law in Iraq. The international community should not repeat the mistake in Libya.

The ICC has an important role to play in dispensing international justice, and the United States should support its work in appropriate cases where national judicial systems are unavailable. But if it is the will of the Libyan people to try Saif Al Islam Gaddafi and other regime officials, the Obama administration and the international community should support their efforts.

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