- By David BoscoDavid Bosco, a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
Since rebel forces apprehended Saif Gaddafi last November, the International Criminal Court and the Libyan authorities have largely been pitted against each other, each wanting to host the trial of the former ruler’s voluble son. In the background, however, there has always been the possibility that the two claims could be reconciled, perhaps through an ICC-managed or supervised trial that would take place in Libya (David Kaye and Mark Kersten both made the case for that option). Today, the BBC reported that just such a deal is in the works:
The BBC’s Jon Donnison, in the Libyan capital Tripoli, has been told by a Western official with good knowledge of the case that a deal is close to being agreed.
But the official warned it could be months before any trial might begin.
Describing the suggested arrangement as ground-breaking for the ICC, the official acknowledged concerns that 39-year-old Saif al-Islam could face the death penalty in Libya.
But he added that the court could accept a death sentence if the trial was fair and transparent, and there was an adequate appeals process.
I’m not sure what to make of the story. It appears to be based on one anonymous source, and there has been plenty of confused reporting in the past on the ICC/Libya saga. If it is true, it would be a remarkable development for the young court, which has never been involved in a trial away from the Hague. Kevin Jon Heller has some thoughts on the potential complications here:
Would ensuring that the ICC has at least some role in a national trial be a good idea? To be honest, I’m not so sure. I think it is very unlikely that Saif will get a fair trial in Libya, ICC involvement or not. Any deal between the ICC and Libya, therefore, would means that the Court would be on the hook for the results of the trial — if it turns out to be a fiasco, the Court would share the blame with the Libyan government. And rightfully so. Be careful what you wish for, ICC!
Update: Reuters is now reporting that ICC prosecutor Luis Moreno-Ocampo has arrived in Libya and that he is denying brokering a deal:
Asked whether a potential deal was being brokered with the Libyan government about trying Saif al-Islam in Libya under the supervision of the ICC, he said: "I am a prosecutor at the ICC, I don’t make deals. We apply the law.
"The judges of ICC ordered (Libya) to surrender Saif. The Libyan government says they will challenge the admissibility of the case before the end of April and then the judges will decide."