The ICC, Libya, and the Fate of Qaddafi’s Son

Luis Moreno-Ocampo, the powerful Chief Prosecutor of the International Criminal Court.

The son and intelligence chief of former Libyan leader Moammar Qaddafi have both been captured by militia groups in Libya within the last few days. Both men are wanted by the International Criminal Court (ICC) on charges of crimes against humanity, and a tug-of-war has begun between the ICC and Libya’s new leaders over where and how these fugitives will be tried.  Libya’s interim government, the Transitional National Council (TNC), had promised to turn over these suspects to the ICC in the Hague once they were captured, but Libya’s leaders are now rethinking those commitments amid strong political pressure from some Libyan groups to try the men at home.

As discussed in a previous World Politics News Review post, the ICC is a 114-member International Governmental Organization (IGO) designed to prosecute individuals accused of genocide, war crimes, and crimes against humanity.  Although some countries, including the United States, have expressed concern that the ICC could trample on state sovereignty, the organization is supposed to adhere to the principle of complementarity, meaning it can only take action if national court systems are unable or unwilling to deal with the alleged perpetrators of these crimes.

In this case, Libya’s new government has yet to create an independent and effective court system capable of handling these trials, and the fate of Moammar Qaddafi–who was killed by a crowd of angry Libyans after being captured–casts further doubt on the country’s ability to hold a legitimate trial.  This situation therefore seems ideal for the ICC to step in under the principle of complementarity.  But many Libyans want Qaddafi’s son and intelligence chief tried at home for a range of offenses committed during Qaddafi’s long and oppressive rule.  One compromise that was discussed in a recent New York Times article would see the men tried first by the ICC on narrow crimes against humanity charges and then in Libya for a broader array of Qaddafi-era crimes against the Libyan people: “Holding a first trial in The Hague, lawyers and diplomats said, would have the benefit of keeping Mr. Qaddafi in a secure place and allow time for Libya to stabilize. The country also needs to build up a justice system, virtually from scratch, that is able to handle credible trials.”

What do you think?  Should the ICC relent and allow Libyans to try their own countrymen for crimes against the Libyan people?  Or would such an approach risk a trial that is–in image if not in reality–illegitimate, at a time when Libya is in desperate need of an independent and effective judiciary? If the ICC can pressure Libya’s leaders to take actions they don’t believe are in the national interest, has this IGO become too powerful?

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