The Multilateralist

Can Libya try the Qaddafis?

One of the important plotlines developing as the Qaddafi regime collapses is what will happen to Muammar al-Qaddafi and his son Saif, both of whom have been indicted by the Hague-based International Criminal Court (ICC). ICC officials have said that they expect the Qaddafis to be handed over if they are taken alive, and court ...

One of the important plotlines developing as the Qaddafi regime collapses is what will happen to Muammar al-Qaddafi and his son Saif, both of whom have been indicted by the Hague-based International Criminal Court (ICC). ICC officials have said that they expect the Qaddafis to be handed over if they are taken alive, and court officials are apparently in talks with the rebels. But several reports suggest that the rebels want the chance to put the Qaddafis on trial in Libya. ICC statements suggest that the talks may continue for some time. As reported by Reuters, a court spokesman said, "It is simply too early to talk about details of those discussions or time frames. The situation is not fully clear or stable in Tripoli, so that might take some time."

Formally speaking, all Libyans are under a legal obligation — imposed by the U.N. Security Council — to cooperate with the ICC. So the new Libyan regime is required to comply with the existing ICC warrants and hand the Qaddafis to the court. If they choose not to do so, the question would be whether the international community insists. If the new authorities balk at transferring the Qaddafis, the ICC could inform the Security Council of the noncompliance, but the Security Council has generally been weak at enforcing the writ of international courts (and the political dynamics in this case make it very unlikely that the council would directly challenge the new authorities). If it chose to do so, the Security Council could suspend the ICC proceedings to allow the new Libyan authorities time to put in place new institutions and mount their own trials. This deferral option is provided for in Article 16 of the ICC’s Rome Statute and would require an affirmative resolution of the Security Council.

Assuming Libya does hand over the Qaddafis, there’s still a chance they could face trial in Libya. After their transfer to The Hague, the next step would be for the ICC to confirm the charges against the Qaddafis. If the Libyan authorities choose, they could challenge the court’s jurisdiction on "complementarity" grounds, arguing that Libya is ready to start its own proceedings against the Qaddafis. Unlike the international tribunals for the former Yugoslavia and Rwanda, the ICC is supposed to step back when credible national proceedings are under way. The judges assigned to the case would then have the unenviable task of assessing whether the new Libya is capable of conducting credible trials.

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