Gaunt, frightened and with nowhere left to go, a captured Saif Gaddafi confronts the new Libyan government with a dilemma: whether or not to ship him off to The Hague.
In reality, the government’s room for manoeuvre may be more limited than it thinks. In March, when security council resolution 1970 referred the situation in Libya to the prosecutor of the international criminal court, it internationalised the judicial response to Saif’s alleged crimes. In May, the prosecutor reported that Saif was associated with the killings of peaceful demonstrators, the recruitment and mobilisation of mercenaries and militias, and the imprisonment and elimination of opponents. On 27 June, three ICC judges issued an international arrest warrant against him, citing him as a co-perpetrator in crimes against humanity, with his father and Abdullah al-Senussi, the head of military intelligence – now also reportedly captured.
The June decision gave the ICC judges a key role in deciding where and how Saif will be tried. Although Libya is not a party to the ICC statute, it is a UN member, and resolution 1970 explicitly provides that «the Libyan authorities shall co-operate fully with and provide any necessary assistance to the court and the prosecutor».
The new Libyan government is therefore bound by a legal framework: it cannot lawfully ignore the ICC judges and decide that Saif will be tried under local law. Unlike Iraq, where there was no international indictment of Saddam, the decision on Saif is not an exclusively Libyan affair.
What does this mean in practice? There are basically four options. The first is to send Saif to the ICC for trial in The Hague. Even this decision would not be free from difficulty: who decides, and according to what criteria? A second option is for the ICC and the new Libyan government to reach agreement on an ICC trial in Libya. This is not something the court has done before; it might go some way to satisfy understandable demands in Libya for a local trial, subject to international oversight and justice dispensed by international judges.
There is a third possibility, if Libya’s government really does want to try him in the country under its own law and procedure: under the principle of complementarity, which may give national courts a first bite, the government may have to persuade the ICC judges it truly is able to prosecute him under fair trial conditions for the international crimes for which the international arrest warrant was issued. Libya’s legal system has a terrible record on doing justice – Iraq needed extensive help from the US to create an illusion of fair trial.
A fourth option is for the Libyan courts to try him first for some other alleged crimes that are outside the jurisdiction of the ICC, for example because they occurred before February 2011, when the ICC became a player. This option would clearly be available in relation to Senussi, who has been directly implicated in the mass killings that occurred in 1996 at the notorious Abu Salim prison. Whether there is sufficient evidence against Saif is unclear.
The ICC prosecutor is in Libya this week to discuss the way forward. He will face a government that is still in flux, and under considerable local pressure to see justice is done in Libya. The bloody killing of Muammar Gaddafi, however, raises serious questions about whether that is possible, but it also increased the pressures on the new government to show it can deliver justice in a rule-of-law framework.
Many of those who say the trial should take place in Libya nevertheless recognise that Iraq’s proceedings against Saddam circumvented many of his greatest crimes and came to an expedited conclusion, and wonder whether sham, local justice can ever be avoided in the aftermath of a bloody conflict. Also, the international justice may not offer the swift justice some will want, as the abortive trial of Slobodan Milosevic made clear. Others with a clear interest in what happens next will include those in the west who were, until recently, friends with Saif, wondering whether his extensive contacts will be more or less public in a trial in Libya or The Hague.
The ICC intervention helped transform the outcome in Libya by contributing to the delegitimisation of the Gaddafi regime. Military action followed and was decisive. But the ICC’s role made the crimes an international matter, and in staying the hand of vengeance the Hague judges will have to be involved. The ICC is entitled to the fullest co-operation of the UK, and to hope for support from the US.
By Philippe Sands QC, a barrister in the Matrix Chambers and a professor of international law at University College London. He is the author of Torture Team.