Rice says Libyan people can decide whether to try Qaddafi; ICC says not so fast

U.S. Ambassador to the United Nations Susan E. Rice told CNN’s Wolf Blitzer today that the Libyan people will have to decide whether to try Muammar al-Qaddafi themselves for crimes against his people, or surrender him to face justice before the International Criminal Court (ICC).

“This is something that must be decided not by the United States or any other government, but by the people of Libya and by the interim transitional government that we expect will soon be constituted,” Rice said. “These are all choices that the Libyan people will ultimately have to make for them.”

Not so fast. A statement issued today by ICC prosecutor Luis Moreno-Ocampo said that any decision on where Qaddafi and two of his associates will be tried must be made by the Hague-based court’s judges, not the Libyan people.

The U.N. Security Council adopted a resolution in late February granting the ICC authority to prosecute top Libyan officials for their role in a bloody government crackdown on protesters. The court’s judges issued an arrest warrant in June for Qaddafi, his son Saif al-Islam, and his intelligence chief Abdullah Senussi on charges of committing crimes against humanity.

The ICC prosecutor’s performance with regards to the Libya conflict has so far been bumpy. On Monday, Moreno-Ocampo announced that he had been informed that rebel forces had arrested Saif al-Islam. Today, his spokesman acknowledged that the prosecutor had only heard this information from a secondhand source, which turned out to be wrong.

With the prospects of Qaddafi’s capture growing by the hour, the country’s rebel leaders have expressed an interest in prosecuting the three Libyan leaders themselves. Ibrahim Dabbashi, Libya’s former deputy U.N. ambassador and a representative for the opposition, told reporters in New York that the Libyan opposition would like to try Qaddafi for war crimes inside Libya, but that they are in talks with the ICC on how to proceed. 

But legal scholars and court advocates say the decision is not up to the Libyan people.

Richard Dicker, a court advocate at Human Rights Watch, said that the U.N. Security Council “took the matter out of the hands of the Libyan people.” That decision, he said, reflected a judgment that the Libyan judicial system, undermined by four decades of autocratic rule, did not have the capacity to conduct a fair trial of the three accused men.

Dicker recalled that Libya’s Transitional National Council (TNC) pledged in a letter to the ICC prosecutor to cooperate with his investigation, and surrender Qaddafi and the two others to the court.

“Contrary to Ambassador Rice’s statement — while of course there will need to be national trials in Libya — for the three ICC accused there is a binding obligation to arrest and surrender them for fair trial in The Hague,” Dicker said.

James Goldston, the executive director of the Open Society’s Justice Initiative, said a new Libyan government would be obliged to execute any ICC arrest warrants against the Qaddafi officials, but that it could make a case to the court that Libyans “have the power and the will to try these people.”

“It will have to be the ICC judges that will make the final determination as to whether any domestic proceeding comply with requirements of the Rome Statute,” he said, referring to the treaty establishing the ICC.

A statement from Moreno-Ocampo’s office confirmed that ICC judges “will decide on the proper forum to conduct trials” of Qaddafi and the two other officials. The statement also said that Moreno-Ocampo had “confirmed his commitment to work with the TNC to stop the crimes in Libya and do justice.”

But other analysts believe that the United States is right to support Libyan efforts to prosecute Qaddafi in Libya, saying it would provide the new government with a chance to shore up its legitimacy and prove that it can pursue a just end to its own problems.

“This is the right policy choice if Libya can prove capacity + ability to administer impartial justice,” Michael Hanna, an analyst at the Century Foundation, wrote on Twitter today.

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