Writing in the Boston Globe, Juliette Kayyem calls on the International Criminal Court to quickly end its standoff with Libya over where Saif Gaddafi and former intelligence chief Abdullah al-Senussi should face justice:
The jurisdictional question went before the ICC last week, where judges will decide whether the court should go forward with its own prosecutions or stand down. First, a slight reality check: The defendants are in Libya. Unless the ICC is willing to request international military action to steal them, they are staying in Libya. No court order will change that. So any ruling in favor of ICC jurisdiction is only about some exalted notion of the ICC’s own worth....
The ICC represents the proposition that newly free nations should punish their abusive former leaders through court, rather than summary execution. It suggests that a legal reckoning with the past can help countries break free of horrible legacies. Instead of challenging Libya’s efforts to do just that, the ICC could have assisted in its investigation and provided the technical advice necessary to help Libya become a nation under rule of law.
Hopefully, the ICC judges will come to see the futility of fighting Libya.
The dilemma is that judges aren't necessarily trained or predisposed to decide cases based on political realities. The question they face is whether the new Libyan authorities are able to hold fair and genuine national proceedings, and there's plenty of room for doubt on that score. To the extent they harbor those doubts, the ICC's judges face a Hobson's choice: tweak their legal analysis to fit political realities—or stand firm and showcase the court's impotence.