If Qaddafi Is Captured, Where Should He Be Tried?

At the time of writing, the three Libyans indicted by the International Criminal Court for “crimes against humanity” are still all on the run.

First, the rumors that rebel forces had captured Muammar Qaddafi’s son, Saif al-Islam, turned out to be rather dramatically false.

Then, when the rebels broke into Qaddafi’s Tripoli-based compound, the whole affair basically turned into a giant version of the time Geraldo Rivera opened Al Capone’s vault.

Meanwhile, the lesser-known Abdullah Senusi, the regime’s intelligence chief and Qaddafi’s brother in law, is also showing Macavity-like tendencies.

However, there’s a strong sense that it’s only a matter of time till they wind up in rebel hands. And once they do, what happens to them could set the tone for the new Libyan government’s dealings with international bodies.Technically, all three are meant to be handed over the ICC’s headquarters in The Hague. There are several reasons for this. Initially, anti-Qaddafi Libyan diplomats at the UN Mission used their position to request ICC involvement in their country. On the back of this the Security Council voted unanimously to grant the ICC jurisdiction in Libya. Then, in April, the rebel-run “National Transitional Council” wrote to the ICC affirming it would cooperate in all respects.

However, ever since rumors began to circulate that Saif al-Islam had fallen into rebel hands, the hemming and hawing has begun. Rebel representatives are now making it clear they’re very much open to “in-country” trials.

International Law experts say this creates some difficult legal questions, largely because we are now moving into uncharted territory. Richard Dicker, the International Justice Director at Human Rights Watch, told TPM the rebels could not just abruptly withdraw cooperation from the ICC. “A judicial process has been set in motion,” he said. “And you can’t turn it on and off like a light switch.”

Robert A. Enholm, Vice President of the pro-ICC group Citizens for Global Solutions, stressed to TPM that “No one’s ever dealt with this before.” He noted that the ICC is based around the principle of “complementarity,” meaning its purpose is to help nations perform complex trials that they would not be able to pull off on their own.

Using that principle, Enholm said, then there was a “rule of law-based path” down which the rebels might proceed. In hearings before any ICC trial began in earnest they could request the judges consider the trial be held in Libya by arguing the new national courts are either up to the job or better-suited for it.

However, Enholm said this path would be very different to a situation where the rebels “just say immediately the principle of complementarity applies” and schedule in-country trials without a dialogue with the ICC.

Dicker, though, wasn’t sure that the ICC’s judges would grant Libyan in-country trials even if formally petitioned. It would be a “long shot,” he said, because the Libyans would have to demonstrate their court system had the capacity to deal with such complex proceedings. “I say this with complete respect for the intelligence and capability of Libyan lawyers,” he told TPM in a phone interview. “But you don’t go from four decades of repressive rule and no functional judicial system overnight to one with the ability to conduct international trials.”

Dicker noted, for instance, that the “devastated” Libyan judicial system had little on its books about torture, and even less about crimes against humanity, and it would take time to codify these subjects.

Whatever the judges’ decision, Dicker noted that the Libyan national court system “is going to need to be rebuilt… Lots of international assistance will be needed to recreate a judicial system from scratch.”

This points to what both experts agreed might be a hidden middle way: either some kind of joint trial or an ICC process conducted on Libyan soil. Although the original intention for the ICC was to be a court with a permanent location, a possible precursor for this type of trial exists in the Special Court for Sierra Leone, which was set up jointly between that country’s government and the United Nations.

Still, whether Qaddafi & Co. wind up in the dock before an august panel of judges in Libya or the Netherlands, Enholm and Dicker both stressed this could be a remarkable moment for international justice.

As Enholm put it, the sight “may have a chilling effect on the willingness of officers to follow tyrants’ orders elsewhere in the world far into the future.”

That will especially be the case, Dicker noted, if the rebels can restrain their desire for “that old contradiction in terms: summary justice,” and stand by their obligations to the International Court.

Get the day’s best political analysis, news and reporting from the TPM team delivered to your inbox every day with DayBreaker. Sign up here, it takes just a few seconds.