01 Sep David Kaye on What to Do With Qaddafi
01.09.11
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7 Comments
David Kaye has an interesting compromise proposal on what to do with Qaddafi.
Some argue that the new Libyan government would be legally bound to transfer Colonel Qaddafi and his associates to The Hague. Others argue that the I.C.C. must defer to Libyan authorities if they are willing and able to try Colonel Qaddafi fairly in their own courts. A better option should satisfy both I.C.C. partisans and the new leaders of Libya: allow the I.C.C. to try those indicted, but to do it in Libya.
I guess that in principle, there is nothing in the Rome Statute that prevents this from happening. Logistically, it seems a nightmare (uh, an expensive nightmare). Still, it might be time for ICC folks to start packing for Tripoli.
As I understand the Rome Statute, article 3.3 specifically makes that compromise possible, and could even be said to promote the idea. It states after saying the the Court is to be established in The Hague, that “The Court may sit elsewhere, whenever it considers it desirable […]”
It’s good to hear that this option is now being discussed in the debate about where to put the Libyan indictees on trial. Not to give myself too much of a plug, but I made precisely this argument last week (http://justiceinconflict.org/2011/08/26/having-cake-and-eating-it-too-an-icc-trial-in-libya/). It’s eery how similar the arguments are. However, depending on the extent to which Kaye is arguing for Libyan participation in an ICC trial in Libya, he would appear to be veering towards and ICC-hybrid court rather than a ICC trial.
Response…
This will also work for prosecution of Bush, Cheney, Rumsfeld, Rice, Gonzales, et al. — for similar crimes as direct perpetrators or complicitors in secret detention, torture, cruel treatment, inhumane treatment, etc.
Good idea!
[…] (2): David Kaye, writing at the New York Times (see also this Opinio Juris post) has become, as far as I can tell, the first to suggest and ICC trial in Tripoli in the media. […]
In the unlikely event that those particular figures were referred to the ICC via the security council, I suppose that’s true, Jordan.
Response…
M. Gross: Quite.
Also, any one of the now 115 parties to the ICC could refer the case (ICC, arts. 12(2)(a), 13(a), and 14(1)), since alleged crimes occured in some cases on the terr. of a party to the treaty (e.g., Afghanistan, if not Poland, etc. (ICC art. 12(2)(a)) or the Prosecutor could take up the matter proprio motu (ICC arts. 13(c), 15(1)) — and Art. 17 would not apply with respect to the U.S. because (a) the U.S. is not a party, (b) the U.S. is not conducting investigations in good fairth (or at all), and (c) there have been not prosecutions in good faith.
Wouldn’t that be fun!
The international “Nuremberg” trial itself was a trial held away from the court’s permanent location. The London Agreement and annexed Charter of the International Military Tribunal (8/8/1945) decreed that the IMT’s permanent seat was Berlin. But the Charter prescribed no trial location and, in fact, the Charter explicitly mentioned the possibility that the IMT might meet at various times in one of the signatory nations (France, UK, US, USSR). At its opening session in Berlin (10/18/1945), the IMT received the prosecutors’ indictment and announced that it would be tried in Nuremberg. This was a US preference to which the other nations agreed–Nuremberg was in the US military occupation zone of what had been Germany and the US wanted the first trial on its turf. At that time, the allied nations contemplated seriously the possibility that a next IMT trial would occur in Berlin (in the USSR occupation zone), or elsewhere. But of course the Nuremberg trial (1945-46) turned out to be the only international trial of Nazis.