What to Do With Qaddafi

Written on September 1, 2011 by Ángeles Figueroa-Alcorta in Democracy & Human Rights, International Law & Organizations, Middle East

By David Kaye

Libyan rebels discovered weapons hidden under a building in Col. Muammar el-Qaddafi's compound in Tripoli on Tuesday.

Libya’s rebel leaders say they want to try Col. Muammar el-Qaddafi, if and when he is captured, in Libyan courts. In principle, Libyans deserve the satisfaction that only domestic justice can bring. National trials would advance the rule of law and allow Libyans to fully own their political transition.

One problem: the International Criminal Court, based 1,400 miles away in The Hague, has already issued arrest warrants for Colonel Qaddafi, his son and second-in-command Seif al-Islam, and his intelligence chief, Abdullah Senussi. The United Nations Security Council, recognizing that Colonel Qaddafi’s alleged crimes were not just against Libyans but against humanity, asked the I.C.C. in February to investigate the situation in Libya. Now the I.C.C. legitimately wants to try the three for atrocities committed since the uprising in Libya began last winter.

Some argue that the new Libyan government would be legally bound to transfer Colonel Qaddafi and his associates to The Hague. Others argue that the I.C.C. must defer to Libyan authorities if they are willing and able to try Colonel Qaddafi fairly in their own courts. A better option should satisfy both I.C.C. partisans and the new leaders of Libya: allow the I.C.C. to try those indicted, but to do it in Libya.

As important as national trials are, post-Qaddafi Libya would, at least in the short term, lack the infrastructure necessary for such complex prosecutions. As in Iraq soon after Saddam Hussein was ousted, the willingness to adhere to basic due process could be severely tested.

The I.C.C., however, has the experience, expertise and legal infrastructure to try mass crimes. It has put significant investigative muscle into documenting crimes committed since mid-February. A fair trial process could start fairly soon.

Where the trials should be held is another question. Read more…

David Kaye is the executive director of the International Human Rights Law Program at the University of California, Los Angeles.

As published in www.nytimes.com on August 31, 2011 (a version of this op-ed appeared in print on September 1, 2011, on page A29 of the New York edition with the headline: What to Do With Qaddafi).


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