April 18, 2012

The ICC and Sayf al-Islam al-Qadhafi - not so fast!

Sayf al-Islam al-Qadhafi before and after the Libyan revolution

A legal battle is shaping up between the International Criminal Court (ICC) and the Libyan National Transitional Council over the future of Sayf al-Islam al-Qadhafi*, son of the late Libyan dictator Mu'amar al-Qadhafi. The question is not if he will be put on trial, but where. The ICC wants him extradited to its headquarters in The Hague to face charges of crimes against humanity levied in an ICC indictment of last year. Libya has insisted he should be tried by a Libyan court.

The ICC believes it has the authority to try Sayf al-Islam based on United Nations Security Council 1970, which imposed sanctions on the al-Qadhafi regime, gave the ICC jurisdiction over crimes committed in Libya, and required the Libyan government to comply with ICC demands. The two sides are working on a compromise where Sayf al-Islam will be tried in Libya with ICC supervision (the ICC charter allows for it to hold proceedings anywhere it wishes). That's probably what will happen.

That said, this could be a slippery slope for the future. Should the United Nations or the ICC be able to dictate to sovereign nations where their citizens will be tried? How would we react if either organization attempted to order the United States to extradite an American citizen for trial at The Hague? For example, if the ICC indicted an American soldier for what it believed to be a war crime, would the United States feel compelled to extradite him or her?

The ICC was established as a permanent tribunal in 2002 to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. It has limited jurisdiction - it can exercise jurisdiction only in three cases: if the accused is a national of a state party, if the alleged crime took place on the territory of a state party, or if a situation is referred by the United Nations. The last instance is in play with Libya. Libya is not a signatory to the ICC. Neither is the United States.

The ICC is supposedly has jurisdiction only when national courts are unwilling or unable to investigate or prosecute the crimes. Libya has stated a willingness to try Sayf al-Islam and claims that it can do so. What then gives the ICC the authority to impose its jurisdiction on Libya? Of course, UNSCR 1970 provides the required referral, but the ICC should only prosecute when the local nation cannot.

If I had to make the call, I'd say the ICC was overreaching its authority. They should allow Libya to exercise justice in this case. Otherwise, it appears to be just another case of European arrogance.

* The name translates as "The Sword of Islam"