On June 27 the International Criminal Court (ICC) issued arrest warrants for crimes against humanity for Colonel Muammar Gadaffi, his son Saif al-Islam al-Gadaffi, and intelligence chief Abdullah al-Sanussi, collectively known as the Tripoli Three. The decision was a way of applying pressure to the regime and ensuring that those who perpetrated the atrocities in the country eastern regions would be held accountable.
Ideally these men should be tried by an international court that is convened to examine their crimes and judge them. In an ideal world, Libyans would look on as justice was served in the interest of humanity. Sadly, we do not live in this utopia. The reality is that these men must be tried in Libya to prevent them using the international judicial system to avoid their guilt. It is also likely that any outcome other than a trial in Libya will deeply frustrate the Libyan people.
The first reason why the ICC should not seek the Tripoli Three’s extradition to The Hague is because the ICC is the wrong forum for these trials. It provides the accused with an international stage to pose and grandstand on. This happened in the case of former Yugoslav President Slobodan Milosevic, who postured, denied, and sought every legal means to delay the proceedings of the court during his defense at the ICTY. In a Libyan court, the Tripoli Three might not receive a totally impartial hearing, but they will not be allowed, as Milosevic was, to grandstand and support their crimes by providing vacuous and flattering arguments. In this sense, they will be held directly accountable to Libyans for the actions they perpetrated towards their fellow countrymen.
Equally, for Libyans so long denied control over their destiny, it would be a travesty for them to be denied the control over trying the men who made the 42-year Gadaffi regime one of most repressive in the Arab world. Additionally, trying of these men in Libyan court will constitute a key part of the resolution process for this costly conflict, as this was a regime, and consequently a war, that affected only Libyans, not the international community. Jurisdiction should therefore lie with the Libyan authorities, not the ICC. These trials should remain a national, not a supra-national issue.
Previous trials of former Arab leaders teach us valuable lessons, specifically the current trial of Hosni Mubarak, in which the live courtroom television feed was cut off. In a Libyan scenario, the trials would have to be very transparent. Consequently, Libya has a phenomenal opportunity to prove to the world that post-Arab spring Arab countries have the potential to enforce justice in a transparent manner keeping with international standards of a fair trial. The argument that only the ICC is able to do this is inadequate and misguided. Indeed would be fitting that Libya starts its transition from dictatorship to democracy by holding a fair and open trial for its former ruler, one that will set the tone for the years to come.
Therefore, with the Tripoli Three now on the run and the regime in tatters, the key objective is to enable Libya to enter a transition phase between past state-terror and future democracy, and between present uncertainty and forthcoming stability. Part of this has to be the trial of these three key actors in a Libyan court of law, on Libyan soil where the Libyan people can hold them accountable. Involving the ICC will damage the international community’s efforts in Libya, allowing Gaddafi to do even more damage by rhetorical grandstanding, thereby frustrating the Libyan people.
Should the ICC receive custody of the Tripoli Three, it should return them to face Libyan justice at home. Any other outcome will be highly detrimental to Libya, and to the Libyan people's path to democracy and stability.
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