Following US Ambassador to the UN Susan Rice’s announcement that Libyan people can decide whether to try Gaddafi, the ICC chief prosecutor Luis Moreno-Ocampo released a statement reaffirming that the ICC, not Libya, must make the decision regarding Gaddafi’s trial. These conflicting statements highlight background politics of the Security Council (SC) and international law. Under controversial Resolution 1973, the SC granted the ICC authority to prosecute top Libyan officials for their role in the bloody crackdown on protests, but recent statements by Rice and other P3 (UK, etc.) members of the council “delegitimize” the role of the ICC. This shows the danger of the ICC being used by the SC in such an instrumental and political way.
By David Bosco
Over at Turtle Bay, Colum Lynch has a good account of the daylight that has apparently opened between U.S. ambassador to the UN Susan Rice and International Criminal Court prosecutor Luis Moreno-Ocampo. Specifically, Rice suggested yesterday that if Libya chooses, it can prosecute the Gaddafis. The ICC position is that, if captured, the men must be sent to the Hague and that the court's judges will determine whether Libya can conduct proceedings.
There are ways to reconcile the positions. For example, Rice might have meant that Libya has the right to demonstrate to the ICC judges that it is ready and able to put on trials, and not that the new authorities can legitimately refuse to hand over the Gaddafis. But, at the very least, she was deemphasizing the ICC's rule in the Libyan endgame. From a political perspective, this is entirely understandable. The international community is not ready to ensure stability in Libya and is relying on the rebels to ensure a peaceful transition (and thus the ultimate success of the operation). In that context, Western leaders will not want to suggest that the new authorities lack the capacity to perform normal sovereign functions, such as running trials.
Things no doubt look quite different from the Hague. I'm sure the ICC fears that it is being used here: that the matter was referred to them by the Security Council as a way of placing additional pressure on Gaddafi (and perhaps deterring abuses) but that when confronted with political complications major powers lack the appetite to insist that the court's writ be respected. The ICC has to think not only about justice in the abstract sense but about its own institutional vitality. For an institution that has struggled to get its hands on high-level indictees such as Sudanese president Omar al-Bashir and Lord's Resistance Army commander Joseph Kony, the chance to nab the Gaddafis is critical.
Update: A reader effectively outlines some of the policy arguments for leaving the Gaddafis in Libyan hands:
I believe the Transitional National Council in Libya can do a better and quicker job. Plus, there will be hundreds of witness and families who have lost their relatives to Gadhafi's secret police and intelligence to testify on the spot. Their testimony will be lost in the shuffle of the ICC bureaucracy, and if the ICC investigation is expanded to include crimes by Gadhafi before the civil war started, his trial might not conclude until 2020!
The Iraqis did a fine job in trying Saddam Hussein, expedited his appeals process, and put the noose on him at just the right pace. I believe the TNC can do as well as the Iraqis, and hopefully accord Gadhafi the Hussein's fate as well! Plus, his trial in Libya will be better received by the international community which knows that the ICC is funded mostly by the West, which also controls the appointments of its judges. And most defendants before the ICC, including the Serbian General Radko Mladic recently, had called that court "a tool of the West!" Gadhafi committed all his crimes in Libya, and justice shall fall upon him inside Libya, by Libyan judges - not by "tools of the West."
These are powerful arguments; but they still don't answer the question of proper procedure now that the ICC has the case and indictments have come down. Once the ICC process has begun, you can't simply ignore it because it's no longer convenient.
