Opinion What to do with Gaddafi

One problem: the International Criminal Court,based 1,400 miles away in The Hague,has issued arrest warrants for Gaddafi,his son and second-in-command Seif al-Islam,and his intelligence chief,Abdullah Senussi. The UN Security Council,recognising that Gaddafi’s alleged crimes were not just against Libyans but against humanity,asked the ICC in February to investigate the situation in Libya. Now the ICC legitimately wants to try the three for atrocities committed since the uprising in Libya began last winter.

Some argue the new Libyan government would be legally bound to transfer Gaddafi and his associates to The Hague. Others argue that the ICC must defer to Libyan authorities if they are willing and able to try Gaddafi fairly in their own courts. A better option should satisfy both ICC partisans and the new leaders of Libya: allow the ICC to try those indicted,but to do it in Libya.

As important as national trials are,post-Gaddafi Libya wouldlack the infrastructure necessary for such complex prosecutions. As in Iraq soon after Saddam Hussein was ousted,the willingness to adhere to basic due process could be severely tested.

The ICC has the experience,expertise and legal infrastructure to try mass crimes. It has put significant investigative muscle into documenting crimes committed since mid-February. A fair trial process could start soon.

Where the trials should be held is another question. Trial in The Hague would face limitations. ICC proceedings normally take place far from the scene of the crime,in a foreign language,often according to rules and procedures that may be impenetrable to victim communities. And the court has had difficulty educating local communities elsewhere in Africa about its work,a problem that didn’t occur for the Special Court for Sierra Leone in Freetown and the Khmer Rouge Tribunal in Phnom Penh,which are hybrid courts that have elements of international and national law and personnel.

An ICC trial in Tripoli would have practical and symbolic benefits. It would be closer to the communities that most need to see justice done. It could involve more Libyans in the proceedings,a step that would afford the ICC greater access to victims and give young Libyan lawyers and other professionals experience with a modern system of justice. It would give the ICC’s staff members an opportunity to engage directly with the society for which they are doing their work,while serving as a platform for the international community to help Libya rebuild the rule of law.

Trial in Tripoli,with significant Libyan participation,could also signal a new direction for Libya,one that favours the rule of law and integration with the institutions of international life. It could foster criminal prosecutions of lower-level perpetrators and truth-and-reconciliation processes at the national level,as well as investigations of any serious crimes by rebel forces,a signal that the new government believes in fairness within a unified society. It could give new Libyan leaders some breathing room as they build their new system,while not precluding them from later trying Gaddafi for the crimes of the past.

An ICC trial in Tripoli would require resources to build or renovate court facilities. NATO or other forces blessed by the Security Council could help arrange security for defendants in custody. The ICC would require strong security,lest it become a target for remnants of the old regime. The Security Council,which was happy to refer Libya for investigation,should help now by authorising this kind of support and identifying sources of funds and expertise for the trial. At the same time,not all proceedings need to take place in Libya; pre-trial proceedings could begin in The Hague while preparations for the actual trial move forward in Tripoli.

None of this should seem extraordinary. The Nuremberg trials after World War II drew much of their power from the fact that they took place in the country responsible for the worst crimes of the 20th century. And the ICC’s charter,the Rome Statute,leaves open the possibility of trials outside The Hague.

After decades of oppression and six months of war,Libyans deserve the opportunity to bring their oppressors to justice. The international community should support that,and reinforce it by assuring the basic norms of international law. For Libyans,trial by the ICC in Tripoli should be a bridge toward taking ownership of their future.

The writer is the executive director of the international human rights law programme at UCLA