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August 25, 2011

Options for Gaddafi
Posted by James Lamond

1706B177F687715DCE51953326CAWith the world sitting in anticipation for the news of Gaddafi's arrest it is worth taking a look at his options going forward. In June the International Criminal Court accused Gaddafi of inciting his troops to commit mass rape, and indicted him, his son Saif al-Islam and his intelligence chief Abdullah Sanussi with charges of crimes against humanity including the murder of hundreds of civilians, torture and the persecution of innocent people. Gaddafi could also face the consequences of his 41 year of authoritarian rule, his system of bribery, enriching himself and his family with the country's oil money and support for international terrorism. So what are the options going forward?

The exile option - a favorite for dictators - seems unlikely. Early on there were reports that South Africa might provide him with asylum. That has since been proven not to be the case. South Africa, as signatory to the ICC, would be required to arrest and extradite him. With 116 signatories to the ICC, there are few hiding places for the ousted Libyan leader. Zimbawe and Angola seem to be the most likely options, neither is a signatory. 

If Gaddafi does not make it out of the country and is in fact taken alive, he will have to face a trial. The big questions is whether this is tribunal from the ICC or if he will face a local Libyan court. Ideally it would be up to the Libyan people who would deliver justice to the man who persecuted his own people. This would provide closure, help with stability, and help provide legitimacy to both the legal process and the new government. The main problem, however is that the Libyan judicial system is essentially nonexistent after four decades of autocratic rule. 

Stewart Patrick makes a strong argument for ICC jurisdiction: 

“The problem, of course, is that a country must have a competent judicial system to undertake such trials in an unbiased and professional manner. The Rome Statute of the ICC accepts this logic, by embracing the principle of complementarity. That is, the Court can claim jurisdiction on one of only two conditions: when the country lacks a functioning judicial system, or when state authorities have manifestly failed to carry out a credible investigation into alleged atrocity crimes.

"If there were ever a strong case for ICC jurisdiction, it is Libya—a country with no functioning judicial system after four decades of arbitrary, dictatorial rule. Given the monumental governance challenges confronting the TNC, it could take years of international assistance before the Libyan state is capable of conducting a credible trial of Qaddafi and his henchmen. And yet there will be enormous pressure, given the understandable thirst for retribution, for the TNC (or its immediate successor) to fast-track Qaddafi to trial in a judicial proceeding that could become a farce.”

Meanwhile, U.S. policy is that the Libyan people will have to decide whether to try Gaddafi themselves for crimes against his people, or surrender him to the ICC. My thoughts are that the Libyan people have continued to step up to the plate beyond many people’s expectations and they may very well do so here. Column Lynch points out however that this is turning into a bit of a turf battle.

There are very serious concerns about a trial becoming a tool for revenge rather than reconciliation and justice. As Michelle Bowers warns regarding Mubarak's trial in Egypt: 

"The drive for retribution and punishment must not eclipse the need for truth telling, accounting, and transparency... While punishing the old regime for its crimes is necessary and important, the prosecution of deposed officials will ultimately prove an empty victory if the process does not help consolidate a new and meaningful democratic order that ends impunity, reconstructs state-citizen relations, and institutionalizes accountability and rule of law."

Stewart also lays out a series of options and hybrids, two of which I think are especially worth highlighting: 

"Under a fourth scenario, the UNSC could weigh in not on the side of the Court but the TNC, invoking Article 16 of the Rome Statute, which permits a one-year deferral of any ICC prosecution, to suspend ICC proceedings. This could allow the new Libyan authorities time to put into place new institutions and mount their own trials. The downside of this option, as suggested above, is that one year is an awfully short time horizon for getting this done.

"A final scenario would be for the UN Security Council to create a hybrid trial, along the lines of the Special Court for Sierra Leone, which was set up jointly between that country and the United Nations. This option would essentially split the difference: allowing the trial(s) to occur in Libya itself, while providing sufficient external judicial expertise, as well as financial and other resources, to ensure a credible, professional proceeding."

I think these options provide a nice balance. But ultimately it should be up to the Libyan people and the new government, this is their revolution. The new government will face a range of major tests, from creating a system of government where the various groups that make up the TNC feel they all have a stake in the new system to creating order and stability to performing basic functions like trash collection. These tests will allow a new government to develop its legitimacy among the people. The Gaddafi trial is just one of these tests. He was such a looming figure for so long, that if the new government feels they have the “capacity + ability to administer impartial justice”, as Michael Hanna put it, it should.

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