How Not To Argue Libya Should Prosecute Gaddafi (Updated)
Where Gaddafi should be tried — if and when he is captured — has become quite the hot-button issue recently. Personally, I’m with David Kaye: he should be tried by the ICC, but the trial should be held in Libya. I’m also not opposed to Libya asserting its right under the ICC’s complementarity regime to try Gaddafi domestically, although I’m skeptical the new government will be able to hold such a trial in the near future. There are, of course, many good reasons to prefer a domestic trial to an international one.
This, however, is not one of them:
The first reason why the ICC should not seek the Tripoli Three’s extradition to The Hague is because the ICC is the wrong forum for these trials. It provides the accused with an international stage to pose and grandstand on. This happened in the case of former Yugoslav President Slobodan Milosevic, who postured, denied, and sought every legal means to delay the proceedings of the court during his defense at the ICTY. In a Libyan court, the Tripoli Three might not receive a totally impartial hearing, but they will not be allowed, as Milosevic was, to grandstand and support their crimes by providing vacuous and flattering arguments. In this sense, they will be held directly accountable to Libyans for the actions they perpetrated towards their fellow countrymen.
The idea that preventing grandstanding is more important than providing Gaddafi and the others with an impartial trial is, well, kind of abhorrent. It’s also rather naive to think that a Libyan trial would prevent Gaddafi from grandstanding, short of heavy-handed methods that would themselves infringe upon his right to a fair trial (keeping him in his cell, gagging him, prohibiting media coverage, etc.) Indeed, the author of the blog post also insists — seemingly unaware of the contradiction — that “[i]n a Libyan scenario, the trials would have to be very transparent.”
Something tells me that a “transparent” Libyan trial would feature quite a bit of Gaddafi grandstanding.
UPDATE: Stuart Ford has a recent article that explores in great depth how the ICC could try cases outside the Hague. It’s well worth a read. You can find it here.