When the United Nations referred the situation in Libya to the International Criminal Court (ICC) in February, there seemed to be a theory that it would reduce the violence with which the regime responded, and that it would deter others from responding to uprisings with force. Neither has quite happened, and now there seems to be a growing movement to ignore the ICC indictment and let Libya determine the appropriate resolution for Qadafi. Since rebels took control of Tripoli, it has been reported that a bounty of $2 million has been placed on the “arrest or death” of Qadafi, along with amnesty for the claimant.
In July, the ICC issued arrest warrants for Qadafi, his son Saif, and the country’s intelligence chief. British Prime Minister David Cameron recently appeared to voice support for a Libyan process rather than the ICC process. This led to at least one commentator to argue to the contrary. According to lawyer Geoffrey Robertson:
It is too much to expect that Gaddafi can receive justice at the hands of those whom he has repressed for so long, in a corrupt judicial system that he controlled (and so could not be considered “judicial” in any real sense). It must now be reconstructed from scratch, with new judges independent of the National Transitional Council. That gimcrack organisation’s UN spokesman said that it wants to organise Gaddafi’s trial, but it is plainly unable to secure an unbiased legal process when he does fall into its hands. The bounty on his head seems to confirm the NTC’s preference for Gaddafi’s summary execution.
There is a more important reason of principle why the fate of the Gaddafis must not be left to the Libyans. The colonel is charged with crimes against humanity – the mass murder of civilians by perpetrating offences so barbaric that the very fact that a fellow human being can commit them demeans us all. Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie, and almost as many in a UTA passenger jet over Chad a few months later – these are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that Gaddafi face real justice in The Hague and not revenge in Benghazi.
This is a bit of overstatement, given that the mandate from the U.N. Security Council was only to investigate crimes against humanity, war crimes occurring since February, 2011. Other commentators have questioned whether the ICC has the tools and credibility to carry out the investigation and prosecution, with all the cases going on, the lead prosecutor leaving at the end of his term next year.
Whatever the resolution of the Libya cases, whether or not they wind up in The Hague will be a key test of the credibility of the ICC. Can the ICC truly be an institution of international justice or will it be a threat rarely fulfilled?