Trib exclusive: Who tries Gadhafi's son could determine future of concept of national sovereignty
By John Bolton
Published: Saturday, June 8, 2013, 9:00 p.m.
Since 2011, when Libyans overthrew and killed Moammar Gadhafi, a little-noticed but highly significant legal battle has been fought over who will prosecute those in his regime accused of human-rights abuses.
In particular, the fate of his son, Saif al-Islam Gadhafi, is the subject of an enormous struggle between Libya's post-Gadhafi government and the International Criminal Court (ICC).
Will Libya's new government or the ICC try Saif for crimes committed during his father's rule and the civil war that ousted him? This is not a dry-as-dust dispute over the jurisdiction of competing courts but a fundamental political issue about national responsibility and sovereignty with profound implications for the United States.
When the ICC treaty was under negotiation, supporters argued it would be needed only when a country's legal system wouldn't prosecute its own citizens. The “complementarity” doctrine, they contended, would ensure that nations prepared to take responsibility for crimes committed in their names would be free to do so.
Of course, no one had any idea how the abstract, untested “complementarity” theory would actually work. Moreover, an even more fundamental issue was at stake: Is it always desirable to prosecute alleged human-rights violators or can countries legitimately choose other ways to confront their history, resolve abuses and disputes and move forward?
For example, after apartheid, South Africa established a truth-and-reconciliation commission to encourage exposing the full truth about apartheid's crimes, providing amnesty for those who confessed fully. Several former Communist-bloc police states preferred a general release of information about their history and blanket forgiveness, believing so many had been implicated in human-rights violations, even if unwillingly, that prosecutions would keep society's open wounds festering.
Each country has to make a mature judgment whether to follow a criminal-justice formula or whether progress, social peace and stability are better served by other approaches. If prosecution is rejected, there is now a risk the ICC will try to overturn the national decision and prosecute anyway. That risk is now manifested in the ICC's demands to prosecute Saif Gadhafi.
If the ICC can override Libya, which actually intends itself to prosecute the miscreants, what recourse is there for countries wishing to pursue the alternative approach?
ICC proponents say Libya is not capable of a serious prosecution. That might currently be true but it is not a compelling reason to immediately extradite Saif (still held by anti-Gadhafi rebels who captured him in 2011, not by the new government), thereby relinquishing the potential for trial in Libya. Many Africans will see this as yet another example of a European-dominated ICC (understandably, given European Union leadership in establishing it) presuming to administer criminal justice to former colonies.
The African Union's May summit complained bitterly that the ICC has conducted only eight formal investigations, all of them related to Africa. Ethiopian Prime Minister Hailemariam Desalegn said “now the process has degenerated into some kind of race hunting.”
Will Libya be forced to submit to the ICC, thereby establishing a precedent against other sovereign states? (Libya is not an ICC member but the U.N. Security Council conferred jurisdiction on it, supported by the Obama administration's naïve enthusiasm for multilateralism.) ICC advocates worry that successful defiance by Libya will accelerate a growing challenge to their larger plans for global governance, in which the ICC is a crown jewel.
In a closely related development, the International Criminal Tribunal for Yugoslavia (ICTY) acquitted two Serbian officials charged with directing Bosnian Serb paramilitary campaigns against Muslims in the 1990s that resulted in terrible human-rights abuses. The ICTY and a sister court established after the Rwanda genocide were, in effect, precursors of the ICC, which was intended to be their permanent successor.
By limiting the theory of “command responsibility,” the ICTY has dramatically restricted the ability of prosecutory zealots to reach to the very top political leaders of a country, even without conclusive evidence. One major goal of ICC advocates was always to deter and constrain America from what they saw as its excessively free-wheeling actions. Not for them the argument that democratic governments are responsible to their own citizens and constitutions; they wanted accountability to the self-important, high-minded people who advocate “international norms” regardless of democratic legitimacy.
Whatever the limitations of Libya's current government — and there are many — the outcome of this seemingly distant dispute is important for the United States. Are countries sovereign on such issues, or sovereign only if the ICC allows it? That is why what happens to Saif Gadhafi might someday matter to a president of the United States.
John Bolton, a former U.S. ambassador to the United Nations, is a senior fellow at the American Enterprise Institute.
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