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.