Wednesday, November 23, 2011

Does Libya Have the "Right" To Prosecute Gadhafi's Son?

Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC), announced today that Libya could prosecute Saif al-Islam Gadhafi, son of the recently ousted and killed Libyan dictator Moammar Gadhafi (click here to read the story: Al-Islam, his father's heir
apparent, was captured by the Libyan authorities last weekend. Both Moammar
Gadhafi and his son had been indicted by the ICC on charges of crimes against
humanity earlier this year. Moammar Gadhafi was killed shortly after his
capture, but al-Islam was captured alive. Thus, Moreno-Ocampo originally announced that the ICC would try al-Islam- possibly because this is the only Gadhafi who would face
international justice, and possibly because such a high-profile prosecution
would enhance the legitimacy of the ICC and mark the last grandiose achievement
of the outgoing prosecutor, Moreno-Ocampo, whose term will be expiring at the
end of this year. However, in a stark reversal of position, Moreno-Ocampo announced that Libya had the right to try Gadhafi's son, if it could prove to the ICC judges that it had the capacity to
do so. In fact, Libyans will have to demonstrate to a panel of ICC judges that
their country has a functioning and independent judiciary. If ICC judges confirm that this is true, then al-Islam will face justice in Tripoli instead of at the Hague.
Many may wonder about Moreno-Ocampo's seemingly sudden
change of heart. The ICC prosecutor stated to the media today that Libyans "are proud," and that it would be a "matter of national pride to show that Libyans can do the case."
While this may be true, is Moreno-Ocampo correct in his assessment that Libyans
have the "right" to prosecute Gadhafi's son? Yes, but only if Libyans
can demonstrate a true capacity to conduct a fair, neutral criminal case
against Gadhafi's son. The ICC system functions based on the principle of complementarity
- the idea that national jurisdictions take precedence over international
prosecutions at the Hague, if they (national courts) are willing and able to prosecute
charged defendants. Thus, the ICC should only prosecute in those cases where the concerned state is unwilling and unable to prosecute a defendant. In the case of
al-Islam, the relevant inquiry becomes Libya’s willingness and ability to
prosecute him. While Libya is certainly "willing" to put Gadhafi's son before its judges, it is uncertain if it is "able" to do so. "Ability" in this context refers to the possibility of
conducting a fair and just trial, with impartial judges and the application of reasonable
national or international criminal laws. Under this standard, is Libya truly "able" to prosecute
al-Islam? This is what Libyans will have to prove to ICC judges, and if ICC
judges are satisfied, then arguably Libyans do have the right to prosecute Gadhafi's son.
Is Moreno-Ocampo's decision advantageous for the future of the ICC and its overall
reputation and legitimacy? In the context of Libya, this decision signifies
that any other Gadhafi collaborators caught by the new Libyan authorities could
also be prosecuted in Libya (that is, if ICC judges determine that Libya is
"able" to prosecute Gadhafi’s son), based on the al-Islam precedent. This could mean that the ICC may never get its hands on any Libyan defendants, despite several existing arrest
warrants. If national prosecutions in Libya
are conducted in a fair manner, them the lack of ICC prosecutions may not be
too disadvantageous. If Libyan prosecutions turn out to be a sham, however, then the ICC may appear as yet another international law organ: a player capable of issuing legal orders, but
incapable of enforcing them. And in terms of a global deterrence message to other rogue leaders across the world, a potential ICC prosecution carries significantly more weight than a national one where proceedings may be carried out behind closed doors and where the
international law community may have very little impact. Thus, leaders in countries like Yemen and Syria may not be particularly deterred in their abusive governance by a Libyan prosecution
of Gadhafi's son, especially if such Libyan prosecution is marred by irregularities. If ICC judges grant Libya the right to prosecute Gadhafi's son, and if Libyan prosecution of Gadhafi's son is not
properly conducted, Moreno-Ocampo may forever regret his decision.

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