How Not To Argue Libya Should Prosecute Gaddafi (Updated)

by Kevin Jon Heller

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.

http://opiniojuris.org/2011/09/07/how-not-to-argue-libya-should-prosecute-gaddafi/

10 Responses

  1. I wonder why people have such a problem with grandstanding by Defendants.  There was grandstanding at Nuremberg.  There was grandstanding at the Chicago Seven trial.  Running the risk of a defendant who is not a lawyer saying anything they want as part of their defense is a hallmark of a fair judicial process.  The State or international prosecutor that is prosecuting the person certainly has plenty of opportunity to grandstand – yet no one has a problem with that.  People make this seem like everything is supposed to be in a nice neat bow with everyone acting like they are in a gentleman’s club sitting in leather chairs with snifters of brandy.  Good grief!
    Best,
    Ben

  2. Some of the things I have read recently about the trial of Mubarak in Egypt highlight the difficulties of complicated trials of former heads of state by fledgling regimes following long periods of autocratic control.  The Egyptian authorities don’t seem to be able to conduct a credible trial, and the last NYTimes article I read seemed to hint that the process was on the verge of collapsing.  I would be really concerned that something similar would happen in Libya. Admittedly I don’t know much about the Libyan judiciary, including its credibility, independence, competence, etc., but I think its likely that Gaddafi didn’t reward his judges for independence and impartiality, so I am going to guess that the Libyan judiciary would probably qualify as weak.
    An ICC trial might take a lot longer and cost more, but would also probably be less likely to disintegrate due to incompetence and/or political interference.  The judgment would also probably be more credible (at least outside of Libya).

  3. The tension between international recognition of the trial process and the instinct for the people to judge their own leaders who did depredations against the judiciary along with everyone else is always there. 

    Independence of the judiciary is always a question and fairness of the trial – see the questionable Saddam Hussein trial.

    We get back to the models for this.  Similar trials have happened in other African countries and been riveting for the people to listen to on the radio.  I have memories of those moments as powerful moments of healing for the people also – to see the high and mighty brought low in a court of law.

    Best,
    Ben

  4. I’d recommend on this subject Tyrants on Trial: Keeping Order in the Courtroom by Patricia Wald, drawing on her experiences as a US appeal court judge and later as US rep at ICTY. You can download it at our website: http://www.soros.org/initiatives/justice/articles_publications/publications/tyrants_20090911

    Best wishes, Jonathan

  5. I agree with Kaye as well and wrote a piece to that effect which may be of interest to some readers. The discussions about holding some preliminary hearings of the “Ocampo Six” in Kenya rather than in The Hague, has opened up the issue of whether the ICC can or should relocate itself, in some cases, where the crimes it investigates occur. Beyond all of the benefits of holding an ICC trial in Libya, it’s simply difficult to think of any good reason not to. The major obstacles (funding, protection of staff, etc) that have been suggested important are logistical in nature, while the benefits would enhance the justice of bringing the Tripoli Three to account. You would have to think that the drafters of the Rome Statute, included Article 3(3), which gives the Court authority to decide to sit “elsewhere, whenever it considers it desirable” for a reason!

  6. Well, knowing the budget process in the ICC, I would like to see the State Parties put their money where their mouth is. “Logistical in nature” problems have enormous financial implications, especially when the States’ moods are “zero-growth”, period. It’s relatively easy to hold a hearing or two outside The Hague, but such a huge case with multiple accused would require relocation of half of the Registry. Let’s see if States Parties would be willing up to pick up the cheque.

  7. Kevin- Thanks for this response. I’m going to direct IJCentral readers to your comments and the good resources you point out. In the future, come hash it out at IJCentral.org in our commenting system. 

    Cheers,
    Hannah

  8. @Stuart – I will read the article more closely in the near future, but from what I have read, it looks fantastic. Thanks very much for sharing. I am curious about the extent to which local judges and chambers could/should be used if the ICC were move to a place such as Libya. The ICC wasn’t set up to be a hybrid tribunal, but having local judges would essentially transform the Court into a temporary hybrid tribunal, no? If this is what is being suggested (I gather as much from your article as well as Kaye’s post), then why not simply argue that the ICC should have the ability to transform into a hybrid tribunal when appropriate, or something to that effect?

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  1. [...] served in Libya. However, a growing number of observers, including influential scholars David Kaye, Kevin Heller, and Stuart Ford, and some less influential ones (see my piece here), have begun to bandy about the [...]