Moammar Qaddafi’s post-capture killing on October 20, conspicuously lacking in due process, created another wrinkle. The “human rights” crowd immediately concluded Libya couldn’t be trusted to provide fair trials for Saif and Senussi, doubtless thereby helping convince the ICC it had to retain jurisdiction. Moreover, Libya provides for the death penalty (a no-no for the International High-Minded), which is not available under the Rome Statute.
Saif’s November 19 apprehension brought matters to a head. Moreno-Ocampo immediately departed for Tripoli to pressure Libya to defer to ICC jurisdiction. One possible “compromise” retaining ICC primacy, reported in the press, was to try Saif at The Hague for the crimes alleged in the ICC’s warrant, then return him to Libya for prosecution for all other crimes he was assumed to have committed in the years prior to Resolution 1970.
Nonetheless, the Libyans stood firm. Moreno-Ocampo retreated, but only partially, saying: “If they prosecute the case, we will discuss with them how to inform the judges, and they can do it, but our judges have to be involved.” There is no Rome Statute or Security Council basis whatever for the prosecutor to insert ICC judges into Libya’s judicial process, and how this will play out remains uncertain.
Moreover, slapping Moreno-Ocampo’s wrist, the ICC’s judges did not accept even his partial retreat, issuing a competing press release on November 23. Making the technically correct point that, under the Rome Statute, they, not the prosecutor, decide whether the ICC will defer to Libya, the judges proclaimed: “Therefore, contrary to what has been reported in the media, [the ICC’s pre-trial panel] remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force.” (The ICC’s propensity to overextend itself is evident even in a relatively small, almost bizarre matter. The ICC took a month to cancel Moammar Qaddafi’s arrest warrant “because,” it said, “of the changed circumstances caused by his death.” In fact, Moreno-Ocampo pressed for DNA evidence to confirm that Qaddafi was dead, rather than accept the continuously recycled visual evidence and the NTC’s statements.)
In short, Libya is far from off the ICC hook. But it remains entirely correct for the NTC to take responsibility for Qaddafi’s depredations, committed as they were in the name of Libya’s people. The NTC could do so in several ways, such as prosecution or creating a “truth and reconciliation” process as in post-apartheid South Africa. Libya’s decision could well be a cornerstone for a legitimate successor regime, encouraging institutions representative of its people. Asserting that Libya can’t be trusted to deal with its past, or lacks the competence to do so, reflects an unacceptably supranational mindset. Political maturity does not arise by taking decisions away from a country and its citizens. Precisely the opposite is true: Maturity grows from citizens’ confronting their own past and resolving it through democratic choice.
The NTC or its successor may fail at this task, or not fully meet international “human rights” standards, but those are Libya’s mistakes to make. Obviously, creating competent, independent courts is a key NTC responsibility, and some worry that trying Saif too speedily will not afford Libya time to do so with adequate due process. But this too is something Libya should measure for itself; it can hardly be in the NTC’s interest to have anything but a fair and transparent trial, lest it simply sow the seeds for renewed civil war by alienating and angering Qaddafi’s clansmen and other supporters.