After the collapse of the Libyan regime, it didn’t take long for the rebels to put a bounty on Qaddafi’s head. Assuming he gets captured — though he might try to sneak out of town in “woman’s clothing,” as his Baghdad Bob–esque minister of information warned, or jump on a one-way flight to Angola — it’s worth asking how his case should be handled. Should the new Libyan government try him for his crimes? Or should he be sent to the Hague, where the International Criminal Court (ICC) would handle the prosecution?
I lean toward allowing the new Libyan government to try him. It’s the Libyan people who’ve suffered under his regime for over 40 years, and it’s the Libyan people who bore the brunt of his vicious crackdown against protesters that would eventually lead to his demise. The process of trying Qaddafi and bringing his crimes to light would be an important first step in trying to build a credible government, establishing its legitimacy, and encouraging respect for the rule of law. By handing him over to the ICC, the Libyan government would be continuing to rely on international support — remember, there wouldn’t be a new Libyan regime had NATO not acted — which has the potential to create a damaging culture of dependency, as we’ve seen in Iraq and Afghanistan.
But trying your own dictator is not without pitfalls. There are even a few lessons we can take from what happened to Saddam Hussein in Iraq. One is that it’s awfully hard to pull off a trial when the new government is still in the midst of fighting a civil war. So I’d put in this caveat — the Transitional National Council (TNC) shouldn’t even attempt to try Qaddafi if it looks like the civil war will continue. They’ll have enough problems on their hands, and don’t need to be worrying about how to handle the daunting logistics of a trial, from proper security in the courtroom to the detailed investigation needed to maintain credibility.
Another lesson from Baghdad, of course, is how to handle the punishment phase. The debacle of the Saddam execution — remember the camera-phone videos and taunts? — had the perverse effect of making Saddam actually look like a sympathetic and temporarily dignified character, at least compared with an official of the new government who was shouting praise to Moqtada al-Sadr in the background. (A disgusted American official who worked on the trial from start to finish put it to me like this after the execution: The Iraqis had Saddam alone only for his final hour, and they screwed it up.) If the TNC doesn’t feel like it can provide a somewhat professional setting — from start to finish — then it would be better in the long run for them to punt the Qaddafi trial to Europe. (That being said, the ICC doesn’t have a death penalty, and if anyone deserves to be hanging at the end of a noose, it’s Qaddafi and his corrupt extended family.)
The Saddam trial did eventually provide legitimacy for the Maliki government, though it took the massive backing of the United States to pull it off. In the long run, it was a net positive for Maliki — he was able to claim that he’d put Saddam to death, which gave him much needed legitimacy. It also erased the specter — ever constant in Iraq — that Saddam was someday going to miraculously return to power. Images of the new government putting the old government down had the unmistakable effect of saying: We’re in charge now. (That’s not to be mistaken for justice, in the legal sense, just the hard reality of wielding power in the Middle East.) However, Iraq would have benefited mightily from a kind of “truth and reconciliation” panel, and if the Libyans do decide to try Qaddafi, another option, as noted by Council on Foreign Relation fellow Stewart Patrick, is a hybrid court with the U.N. Security Council, such as what was implemented in Sierra Leone. (On the other hand, there might be those in the TNC itself who won’t want to look closely at the crimes of the former regime, as they themselves were part of the former regime.)
The recent images of Hosni Mubarak, stuck Hannibal Lector–like in a cage, is another reason to favor letting the country try its own dictators. The Mubarak images are the most unsettling, and powerful, pictures to come from the Arab Spring after the scenes of jubilation in Tahrir Square. The notion of a long-oppressed people holding its own leaders to account, without foreign interference, can be extremely liberating in and of itself.
The symbolism, however, will be hollow if Mubarak’s day in court is a mockery of due process and rule of law. Libyans, it seems, will soon face the same test that Iraqis did — and how the new government manages Qaddafi’s trial will be consequential for years to come.
— Elise Jordan is a New York–based writer and commentator. She served as a director for communications in the National Security Council in 2008–09 and was a speechwriter for Secretary of State Condoleezza Rice.