U.S. Ambassador to the United Nations Susan Rice has stated that it should be up to the new Libyan National Transitional Government (NTC) whether Muammar Gaddafi, once captured, is tried by the International Criminal Court (ICC) in the Hague, or in Libya. This seems to me to be a rather strange statement, and apparently the ICC thinks so too.
Ambassador Rice asserted in an interview with CNN that "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. These are all choices that the Libyan people will ultimately have to make for them."
But the ICC disagrees with Ambassador Rice. Prosecutor Luis Moreno-Ocampo reportedly has said that the Court, rather than Libyans, must make the decision on where Gaddafi and his fellow indictees will be tried.
The ICC opened its investigation into Libya after the situation was unanimously referred to the Court by the United Nations Security Council (UNSC). The ICC issued arrest warrants on June 27th for Gaddafi, his son Saif Al-Islam Gaddafi and Abdullah Al-Sanousi, the Head of the Military Intelligence, for crimes against humanity after Prosecutor Ocampo's request was approved by the Court's Pre-Trial Chamber. In order for a trial to be held in Libya instead of by the ICC, the principle of complementarity would have to be honored-in other words, the new government in Libya would have to show that it is both willing and able to try the defendants in their home country without ICC involvement. Given the current state of the nation and its legal framework after four decades of Gaddafi's dictatorship, it seems unlikely to me that this standard could be met.
GlobalSolutions.org Executive Vice President Bob Enholm recently gave an interview on this topic to Talking Points Memo. Some quotes from the article (click here to read the complete piece):
"(Enholm) noted that the ICC is based around the principle of "complementarity," meaning its purpose is to help nations perform complex trials that they would not be able to pull off on their own.
Using that principle, Enholm said, then there was a "rule of law-based path" down which the rebels might proceed. In hearings before any ICC trial began in earnest they could request the judges consider the trial be held in Libya by arguing the new national courts are either up to the job or better-suited for it.
However, Enholm said this path would be very different to a situation where the rebels "just say immediately the principle of complementarity applies" and schedule in-country trials without a dialogue with the ICC."
It will be interesting to see how all this plays out, but the ICC has certainly become a hot topic as Gaddafi's regime crumbles. For those of us who support the Court, it's good to see that the ICC has helped to legitimize the concept that dictators cannot be allowed to attack civilians in their country with impunity, and that justice for these victims must be a priority of the international community.