The new Libyan government has plenty of worries. There was the deadly attack on the US consulate in Benghazi. Both Islamist militias and armed groups allied with the late Moammar Khadafy still roam the streets. Without a strong central government, the democratically elected leadership is struggling to assert its authority. And now it is at war with the International Criminal Court, in The Hague, over who has jurisdiction in the trial of Saif Khadafy, Moammar’s prized son and onetime heir-to-be. It is a senseless power struggle and one that already has a clear loser: the ICC. The only question is whether the court will bring Libya down with it.
The ICC’s involvement with Libya has been contentious from the start. Many commentators, including myself, were mystified when a UN resolution authorized the ICC to issue arrest warrants against Khadafy and his allies in the middle of NATO operations. The move undermined the tenuous diplomatic options that were still available in mid-2011, before the leader was caught and killed; by indicting Khadafy and his inner circle, the ICC effectively removed any chance that they could be persuaded to give up power peacefully and go into exile, sparing Libya months of bloodshed. The ICC — formed to prosecute the world’s worst human-rights abusers when their nations are unable or unwilling to do so — has struggled for relevancy. The unenforceable Libyan indictments seemed an act of tin-eared desperation.
A lot has happened since then, including an election in Libya. Saif Khadafy has been captured and is being held in Tripoli. He is a prisoner with plenty of secrets to disclose and lots of blood on his hands. Saif was once the charismatic face of Libya’s future, a Cartier-wearing globe-trotter who was in bedouin dress when he was found in the desert. Saif and his co-defendant, the former spy chief Abdullah al-Senussi, who had fled to Mauritania until he was extradited, were both well-dressed torturers.
The ICC, at first, agreed that Libya was capable of trying the two defendants at a court in Tripoli. Luis Moreno-Ocampo, the ICC’s chief prosecutor during its ill-timed indictments, pivoted and ceded all authority to Libya. But Moreno-Ocampo has since retired, and the ICC lawyers who were appointed to represent the defendants are back to challenging Libya’s jurisdiction. The two defendants, fearing a worse outcome at the hands of their countrymen, are arguing that Libya is incapable of giving them a fair trial. Tensions are so bad that, earlier this year, four ICC defense investigators were detained in Libya after interviewing Saif.
The jurisdictional question went before the ICC last week, where judges will decide whether the court should go forward with its own prosecutions or stand down. First, a slight reality check: The defendants are in Libya. Unless the ICC is willing to request international military action to steal them, they are staying in Libya. No court order will change that. So any ruling in favor of ICC jurisdiction is only about some exalted notion of the ICC’s own worth. Libya has spent considerable effort trying to convince the ICC that the new regime oversees a serious and fair-minded government. For an international court to rule, essentially, that it does not, would be an unjustified and wholly unnessessary blow to a fledgling democracy.
There can be little doubt what Saif and al-Senussi would prefer. The ICC does not impose death, and its trials have dragged on for years. Hanging out in a European prison would be a big step up for both defendants. But the ICC was not created to provide more humane treatment for global human-rights violators — it was to impose justice when local governments can’t or won’t.
The ICC represents the proposition that newly free nations should punish their abusive former leaders through court, rather than summary execution. It suggests that a legal reckoning with the past can help countries break free of horrible legacies. Instead of challenging Libya’s efforts to do just that, the ICC could have assisted in its investigation and provided the technical advice necessary to help Libya become a nation under rule of law.
Hopefully, the ICC judges will come to see the futility of fighting Libya. Maybe then, both parties can begin to heal the rift that began when Libya was in the throes of war and Saif Khadafy was still wearing Cartier.Juliette Kayyem can be reached at firstname.lastname@example.org and Twitter @juliettekayyem