Can Libya try the Qaddafis?

Posted By David Bosco Monday, August 22, 2011 - 11:20 AM Share

One of the important plotlines developing as the Qaddafi regime collapses is what will happen to Muammar al-Qaddafi and his son Saif, both of whom have been indicted by the Hague-based International Criminal Court (ICC). ICC officials have said that they expect the Qaddafis to be handed over if they are taken alive, and court officials are apparently in talks with the rebels. But several reports suggest that the rebels want the chance to put the Qaddafis on trial in Libya. ICC statements suggest that the talks may continue for some time. As reported by Reuters, a court spokesman said, "It is simply too early to talk about details of those discussions or time frames. The situation is not fully clear or stable in Tripoli, so that might take some time."

Formally speaking, all Libyans are under a legal obligation -- imposed by the U.N. Security Council -- to cooperate with the ICC. So the new Libyan regime is required to comply with the existing ICC warrants and hand the Qaddafis to the court. If they choose not to do so, the question would be whether the international community insists. If the new authorities balk at transferring the Qaddafis, the ICC could inform the Security Council of the noncompliance, but the Security Council has generally been weak at enforcing the writ of international courts (and the political dynamics in this case make it very unlikely that the council would directly challenge the new authorities). If it chose to do so, the Security Council could suspend the ICC proceedings to allow the new Libyan authorities time to put in place new institutions and mount their own trials. This deferral option is provided for in Article 16 of the ICC's Rome Statute and would require an affirmative resolution of the Security Council.

Assuming Libya does hand over the Qaddafis, there's still a chance they could face trial in Libya. After their transfer to The Hague, the next step would be for the ICC to confirm the charges against the Qaddafis. If the Libyan authorities choose, they could challenge the court's jurisdiction on "complementarity" grounds, arguing that Libya is ready to start its own proceedings against the Qaddafis. Unlike the international tribunals for the former Yugoslavia and Rwanda, the ICC is supposed to step back when credible national proceedings are under way. The judges assigned to the case would then have the unenviable task of assessing whether the new Libya is capable of conducting credible trials.

EXPLORE:FLASH POINTS
 

OPENSOCIETYJUSTICE

4:25 PM ET

August 22, 2011

ICC/Gaddafi

The legal process must be respected. As set out in this article, the mandatory steps to be taken are relatively clear: the legal obligation is to implement the SC resolution 1970 and the ICC arrest warrant.

The issue of whether it is possible to be try these suspects in Libya is a matter to be raised as part of the preliminary arguments under the pre-trial process before the ICC. However, Libya is still required to investigate and prosecute other persons not named in the ICC arrest warrants according to the concept of complementarity which requires all nations to address international crimes.

The international community has already faced a near carbon-copy of this dilemma. The SC referred the situation in Darfur to the ICC, and as in all SC resolutions, States were required to implement the resolution and cooperate with the ICC.

However, other organs of the UN, in particular the peacekeeping force in Sudan, viewed the execution of the subsequent ICC arrest warrant against Bashir as outside their mandate. There have also been several occasions where States that accepted the ICC’s jurisdiction have failed to arrest Bashir when he was on their territory.

If this precedent is repeated in Libya, it risks establishing a parallel, extra-judicial process. That could pose a serious challenge the basis of the ICC which has no police force to implement arrest warrants and thus relies on State cooperation for the transfer of suspects to proceed with trials.

Alison Cole
Legal Officer, International Justice
Open Society Justice Initiative
400 West 59th Street
New York, NY 10019
Office Phone: +1 212 547 6934
Cell Phone: +1 646 361 2645
Fax: +1 212 548 4662

 

BEN-PK

5:08 PM ET

August 22, 2011

Post-Qaddafi Libya

The fate of post-Qaddafi Libya will be no different from that of Iraq. Both have many commonalities. Both are oil rich, both were ruled by autocrats to the disgust of common man. Both were attacked by Western imperialists. "Leading from behind" strategy is just a farce. It was a brazen attack on Libya. The key question is whether the rebels could achieve what they did without global intervention (read: USA and NATO’s aerial strikes against the Libyan population)? According to some analysts, NATO’s strikes were the key to success of rebels in Tripoli. This means that the rebellion was not a populist movement and was successful because Libya was facing a collective fury of the mightiest of the global powers. Read more at: http://pksecurity.blogspot.com/2011/08/nato-is-only-factor-in-libyan-rebels.html

 

David Bosco reports on the new world order for The Multilateralist.

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