A solution to Libya’s justice dilemma

In today’s New York Times, UCLA’s David Kaye offers up an innovative solution to the question of whether the Qaddafis should face justice in the Hague or at home: the International Criminal Court, he argues, should try the Qaddafis in Tripoli.

An I.C.C. trial in Tripoli would have practical and symbolic benefits. Most important, it would be closer to the communities that most need to see justice done. It could involve more Libyans in the proceedings, a step that would afford the I.C.C. greater access to victims and give young Libyan lawyers and other professionals experience with a modern system of justice. It would give the I.C.C.’s staff members an opportunity to engage directly with the society for which they are doing their work, while serving as a platform for the international community to help Libya rebuild the rule of law.

Trial in Tripoli, with significant Libyan participation, could also signal a new direction for Libya, one that favors the rule of law and integration with the institutions of international life. It could foster criminal prosecutions of lower-level perpetrators and truth-and-reconciliation processes at the national level, as well as investigations of any serious crimes committed by rebel forces, a signal that the new government believes in fairness within a unified society.

As Kaye points out, the ICC’s statute explicitly provides for the possibility of holding trials outside the Hague. The logistical and security hurdles would be daunting (as Kaye acknowledges) but not necessarily prohibitive, particularly if the transition from Qaddafi’s rule continues to be relatively peaceful. There are some wrinkles Kaye doesn’t address. The ICC has no provision for the death penalty, for example, something many Libyans will no doubt want in this case. And the Security Council has never authorized the funding for the ICC that Kaye envisions; three of the five permanent members are non-members, after all, and might balk at direct support to the court.

These concerns notwithstanding, the proposal is innovative and important. At the moment, the ICC runs a significant risk of being marginalized in the Libya end game. It may take just such a stroke of imagination to keep it in the picture.

David Kaye responds: 

On the death penalty: I recognize that this is a problem, but it need not be for the ICC trial.  If the libyans have the option of a national process after an ICC trial, it may be difficult to exclude the possibility of the death penalty.  The international community might not like that, but it wouldn’t implicate the trial by the ICC.  And there is always the chance that, by the time we get to a national process, some of the calls for blood would be cooled down (though certainly not eliminated).  On the funding, it’s true that resolution 1970 excluded funding, but only by the UN itself.  There are frozen assets that could conceivably be applied to trial in Tripoli.  Or the UK and French, who pushed for the referral and are Rome Statute parties, could take the lead in finding funding.  I don’t think funding is insurmountable, just a problem to solve.