By: Brandi Joffrion
Libyan rebels captured Seif al-Islam el-Qaddafi, Moammar Gadhafi’s son, this past Saturday. Within hours after his capture, the International Criminal Court’s (“ICC”) prosecutor, Luis Moreno-Ocampo, announced that he would be traveling to Libya becaus Seif-al-Islam is wanted by the ICC for charges of crimes against humanity. However, Libya is not a member of the ICC Rome Statute, and it is arguable that Libya may not have an obligation under the U.N. Security Council Resolution 1970 to cooperate with the ICC’s regulations. If Libya were to cooperate, it would have to hand over Seif-al-Islam or, at the very least, recognize that Libya is within the ICC’s jurisdiction to determine whether Seif-al-Islam can, and should, be tried in Libya’s domestic courts.
The rebels from the town of Zintan, who captured Seif-al-Islam, and the unelected interim government of Libya want him tried in Libya, where he would face the death penalty. This is assuming, of course, that he is not murdered before trial, as occurred to his father. The ICC, on the other hand, forbids capital punishment and would therefore not seek the death penalty against Seif-al-Islam. Additionally, concerns have been raised that if Seif-al-Islam is not tried in Libya, Libyan citizens would be denied due justice.
Despite these concerns, it is argued that Seif-al-Islam should be tried in the ICC in order to prevent a repeat of the depraved proceedings that were brought against the Iraqi leaders. In those cases, the leaders never received due process since they were never tried for their crimes of genocide due to the United States’ insistence that Saddam receive the death penalty. According to the ICC’s statute, a sovereign nation is to be given priority to try its own citizens and the ICC is only to act as a court of last resort in the instance that the local justice system is in a state of “substantial collapse” or unable to operate in an impartial manner. Currently, Libya has no working court system that will satisfy international standards and it plans to enforce the death penalty without regard to ICC standards. Moreover, the Libyan people have demonstrated their willingness to take justice into their own hands without resorting to the justice system, as exemplified through Gadhafi’s death last month at the whim of his captors.
However, Libyan citizens could acquire justice through the ICC if it were to try Seif-al-Islam. It is mandated that all ICC trials be televised, and either part or all of Seif-al-Islam’s trial proceedings could be held in Libya even if tried by the ICC. Furthermore, it is possible to hold two trials: one trial in the ICC, in which the ICC would charge Seif-al-Islam with crimes against humanity, and a second trial in Libya’s domestic courts, in which Seif-al-Islam could be tried for a wider scope of crimes, which could include anything from corruption and abuse of state funds to murder and torture.
Trying Seif-al-Islam within the ICC would also set precedent for future Libyan officials who are in violation of international law and who are indicted for crimes against humanity. As one of the “most serious crimes of concern to the international community as a whole,” it is argued that crimes against humanity should take precedence over any individual charges of murder or corruption that could be alleged within domestic courts. In addition, the ICC provides for a fair and transparent process within the international criminal justice system by permitting the accused to raise defenses and summon witnesses, and by empanelling impartial judges, as well as requiring the heightened burden of proof of proof beyond a reasonable doubt for any individual who may be convicted by the ICC.