The Gadhafis should go to The Hague
It's been a long road. This picture, dated September 3, 1989, shows Libyan leader Colonel Moammar Gadhafi and his son Saif al-Islam reviewing troops upon their arrival to Belgrade prior the Non-Aligned Summit. (Getty Images)
August 24th, 2011
10:30 PM ET

The Gadhafis should go to The Hague

Editor's Note: 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.

By Stewart M.

With the collapse of Moammar Gadhafi'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.

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 Gadhafi to account—or whether a national, Libyan-owned judicial proceeding should take precedence. Here’s one vote for transferring Gadhafi 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 Island, 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 Gadhafi'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 Moammar Gadhafi 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, Gadhafi'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.

If there were ever a strong case for ICC jurisdiction, it is Libya — a country with no functioning judicial system after four decades of arbitrary, dictatorial rule. Given the monumental governance challenges confronting the TNC, it could take years of international assistance before the Libyan state is capable of conducting a credible trial of Gadhafi and his henchmen. And yet there will be enormous pressure, given the understandable thirst for retribution, for the TNC (or its immediate successor) to fast-track Gadhafi to trial in a judicial proceeding that could become a farce.

Provided that Gadhafi is captured alive — and kept that way — there are several potential scenarios in the coming weeks. The first, most straightforward, and ideal, would simply be for the TNC to transfer Gadhafi and his fellow defendants to The Hague to face the ICC.

A second scenario would be to conduct a trial in Libya first. Earlier today TNC Spokesperson Abdel Hafiz Ghoga suggested that the dictator would have to face trial in Libya before facing the ICC. It is unclear, however, that the ICC judges, having begun a legal proceeding against Gadhafi, would agree to an in-country trial, even if formally petitioned by the new authorities in Tripoli, since it would require Libya to persuade the court of its capacity to conduct such a complicated judicial proceeding.

The third scenario would be for the UN Security Council (UNSC) to weigh in on behalf of the Court. If the latter balks at transferring the Gadhafis, the ICC could inform the Security Council of Libyan non-compliance. The UNSC, however, has been rather weak at being the attack dog of the ICC.

Under a fourth scenario, the UNSC could weigh in not on the side of the Court but the TNC, invoking Article 16 of the Rome Statute, which permits a one-year deferral of any ICC prosecution, to suspend ICC proceedings. This could allow the new Libyan authorities time to put into place new institutions and mount their own trials. The downside of this option, as suggested above, is that one year is an awfully short time horizon for getting this done.

A final scenario would be for the UN Security Council to create a hybrid trial, along the lines of the Special Court for Sierra Leone, which was set up jointly between that country and the United Nations. This option would essentially split the difference: Allowing the trial(s) to occur in Libya itself, while providing sufficient external judicial expertise, as well as financial and other resources, to ensure a credible, professional proceeding.

It is unclear, as of this writing, which scenario is most likely. And Gadhafi may yet escape justice by skipping town to Angola or Zimbabwe — neither of which is party to the ICC.

Sometimes it pays to keep it simple.  Libya’s new leadership will also have plenty of other problems on its plate.  For now, the Libyan rebels can likely accomplish the most by making Saif al-Islam — who infamously shouted, “To Hell with the ICC” on Monday — face that very institution with his dad by his side.

The views expressed in this article are solely those of Stewart M. Patrick.

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Topics: Law • Libya • Multilateral institutions

soundoff (28 Responses)
  1. Matt

    Yeah Qaddafi loyalists are going to hold the balance of power in a new Parliament. Who do you think the Sunni's in Iraq are Muppets, they are Saddam loyalists. Just as al-Sadr. It is whether we go through 8 years of insurgency to get to that point. So we can send him to The Hague, but that involves 8 years of insurgency, they get a vote, the enemy. His rein is over, whether he stays or goes into exile is irrelevant, but clearly he cannot stay in the country, he has to leave. Once he puts things in play then it is too late and whatever happens to him, it will be an insurgency. Does he want to go to Fiji.

    August 24, 2011 at 10:51 pm | Reply
  2. sjdsh

    “To Hell with the ICC!” LOL,,Thank you Saif.. you got that right.War was worth it for that statement alone.GREEN = Courage
    Even Bush,Cheney ect got to appreciate that one.

    August 25, 2011 at 2:28 am | Reply
  3. j. von hettlingen

    Crimes against humanity know no statute of limitations. The list of culprits is long. The ICC shouldn't just pick the cherries.

    August 25, 2011 at 5:04 am | Reply
  4. j. von hettlingen

    The author, "predicting the warrant would only hasten the collapse of his political support." A naive assumption! Look at al Bashir in Sudan!

    August 25, 2011 at 5:19 am | Reply
  5. j. von hettlingen

    "Northern Island" – where is this country?

    August 25, 2011 at 5:23 am | Reply
  6. j. von hettlingen

    My personal experience told me that justice was a matter of opinion and not a result of a just outcome based on the principles of rule of law.

    August 25, 2011 at 5:38 am | Reply
  7. Onesmallvoice

    What a ludicrous idea! They want to send the Qadaffy family to the Hague while Barack Obama himself has far more blood on his hands than all the members of that family put together! In fact, Barack Obama, David Cameron and Nickolas Sarkozy all need to be indicted for their part in all this bloodshed, but tragically enough, they won't!!!

    August 25, 2011 at 8:02 am | Reply
    • NonZionist

      When we put ourselves and Israel above the law, we turn the rule of law into a sick farce.

      Justice is not revenge! Punishing or scapegoating OTHER rulers does us no good, when our own rulers are utterly amoral and corrupt. Justice helps us only when it is applied to all, equally.

      August 25, 2011 at 11:36 pm | Reply
    • Ernesto Pantera

      I would say Bush, Cheney, Condi and their dirty war pals got more blood and started all of this invasions. Over 600,000 innocent dead Iraqi thanks to Bush and Cheney and they are free. How come we are not asking for their heads? IN less than 8 yrs they killed more folks than what Saddam and Gadhafi had done all these yrs.

      August 26, 2011 at 3:11 pm | Reply
  8. Pert ner Suppertime

    Why? Let the Libyan people take care of him.

    August 25, 2011 at 10:12 am | Reply
  9. Fed up being the worlds police

    Heres what The WORLD LEADERS should do.Put Khadafi,sadam,The SHAH of iran,Hitler,and all other types who fall under the worlds eyes,and Sick,DICTATORS(oh yeah and CASTRO) on an island with 1 single banana tree and let them kill each other.The last man standing eats the bananas,the others either die or starve.Then when the bananas run out the last one dies from starvation as well.No AMerican lives lost ,no bullest wasted...

    August 25, 2011 at 12:23 pm | Reply
    • Ernesto Pantera

      WHy Castro? Has he killed any USA folks like Vietnam? NO

      Has he killed 1,000 of Cubans for the heck of it? NO

      Bush and Cheney killed over 600,000 innocent Iraqis and started a false war and invasion. That is a lot worse than what Castro, Gadhafi or Sadan ever did.

      August 26, 2011 at 3:16 pm | Reply
  10. John

    What a travesty of justice here! It's Barack Obama, David Cameron and Nickolas Sarkozi who need to stand trial for their part in the slaughter of Libyan civilians, not Mohammar Qaddafy. In fact, for the good of humanity, NATO really should be dissolved once and for all as that alliance falls more and more under the control of the goons in Washington!!!

    August 25, 2011 at 12:35 pm | Reply
    • NonZionist

      Exactly! We Americans are being crushed by injustice. But the source of the injustice is not Gadhafi. It's the war profiteers and foreign lobbyists who have taken over our country. The addiction to war has destroyed us.

      To free ourselves, we must start to hold our own elites accountable. That is what justice is for. We don't need justice in Libya: We need justice here in America!

      August 25, 2011 at 11:41 pm | Reply
  11. sonic10158

    they should go six feet under instead

    August 25, 2011 at 2:39 pm | Reply
  12. Mwirie

    Its amazing for a non member of the Icc to propaget foe that mischevious court, mybe if you dont know who deserves to face the icc then here they are:- G.W.Bush, Tonny Blair, Sarkozy, D,chenny, Rumsfeld, for their crimes against humanity and not Gaddafi expl. look in WTC, Afghanistan, Iraq, Palestine, those are the ones to face the world court

    August 25, 2011 at 2:43 pm | Reply
    • NonZionist

      What? Hold these Honorable Men accountable? Unthinkable! Holding people accountable would benefit the human race. Apparently, that is not the ICC's mission.

      The ICC seems to be part of the Ziosphere's war-making apparatus. It demonizes and scapegoats the rulers of the countries that our own rulers want to conquer or destroy.

      Freedom depends on justice: When justice is absent, criminals take over. If we Americans want to get our freedom back, we will have to resurrect justice, and apply it to our own rulers. Justice can help us, but only if we are willing to apply it here at home.

      August 25, 2011 at 11:58 pm | Reply
  13. Walter

    We are again reminded of the duplicity of the west as it begins to maneuver for a strategic interest in Libya while finding ways to make sure Ghadafi does not come back to bite them in the ass. The only way to assure that Ghadafi never comes back will be to make sure he is tried at The Hague. The ICC is as credible at the United Nations and the United Nations is as credible as the triumvirates (France, Britain and the United States) including China and Russia. These nations have hijacked both the ICC and the United nations to further their own vital interest around the globe it is therefore no surprise that not even a single person from these countries has ever stood trial before the ICC. However it has become I means of settles old scores by these old colonialist and present neocolonialist. However I must confess however long it takes these old stooges will fall just like other great empires of collapsed but I caution them to be ready it might be more bloody and disastrous than they ever imagined.

    August 25, 2011 at 3:21 pm | Reply
  14. james stirk

    If the rebels find him I doubt you will see him alive, more likely in pieces.

    August 25, 2011 at 6:23 pm | Reply
  15. outspoken

    These are all jewish set up ICC.

    August 25, 2011 at 11:16 pm | Reply
  16. Mwirie

    Democracy forbids the use of the military.USA uses the mlitary in every argument on the world arena thats means that country is democratic only to the mojority of those who do not know what democracy means. Why dont the americans ask their Gvt. what are all the Army bases around the world for, hey are defendin their freedom to kill and harsse those who do not agree with their inhuman policies around the world. They boast being christians, could a really christian have such a background history wars, oppression, double morals and standards? as a christian i prey that God will purnish these wicked humans. for your actions against humanity please do not use the term " International Community being behind your devilish plans" say instead we Americas ....... thankyou!!

    August 26, 2011 at 6:23 am | Reply
  17. prezisakenyan

    No American should advocate for the ICC. When you advocate for the UN/ICC you are giving up your rights as an American and giving the World "social justice" programs control over everything you do.
    For those who keep saying we are a least educate yourself before posting, we are a Republic.

    August 26, 2011 at 7:11 am | Reply
  18. hello

    Perhaps they should be sent to the ICC for trial. but don't expect much. Since they are muslim, the "sensitivity" if the court will prevail and they will be sentenced to anger management and sent to live in Chad with the 6 tons of gold they have ripped off from Libya.

    August 26, 2011 at 10:11 am | Reply
  19. Ernesto Pantera

    Why are Bush, Cheney, Condi and their dirty war pals walking free when they got more blood and started all of this invasions.
    Over 600,000 innocent dead Iraqi thanks to Bush and Cheney and they are free. How come we are not asking for their heads? IN less than 8 yrs they killed more folks than what Saddam and Gadhafi had done all these yrs.
    CRIME AGAINST HUMANITY stars with those two!!

    August 26, 2011 at 3:13 pm | Reply
  20. Ernesto Pantera

    Why are Bush, Cheney, Condi and their dirty war pals walking free when they got more blood and started all of this invasions.
    Over 600,000 innocent dead Iraqi thanks to Bush and Cheney and over 12,000 US GI's. Again, are they free. How come we are not asking for their heads? IN less than 8 yrs they killed more folks than what Saddam and Gadhafi had done all these yrs.
    CRIME AGAINST HUMANITY stars with those two!!

    August 26, 2011 at 3:18 pm | Reply
  21. Phoebe

    It is really, really depressing to watch our US leaders, UK and French leaders uproot and destroy other countries through pretext and bombing etc. What makes it worse is that so many common citizens say they know its wrong, but can do nothing about it. Voices of dissent make no difference. These men have the mighty mighty weaponry that they use at will. May justice prevail!!

    August 26, 2011 at 5:43 pm | Reply

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