With the capture of Saif Gaddafi, important questions about justice now come to the fore.
The Libyan transitional council and the ICC both want to try Gaddafi for his role in crimes committed against the Libyan people, but the ICC is a court of last resort. This means that the Libyans should try Gaddafi if they decide to do so.
Abdurrahim al-Keib, the Libyan Prime Minister, was quite clear about his government’s plans: "We assure Libyans and the world that Saif al-Islam will receive a fair trial… under fair legal processes which our own people were deprived of for the last 40 years." But ICC prosecutor Luis Moreno Ocampo wants to talk it over: "The good news is that Saif al-Islam is arrested, he is alive, and now he will face justice," he told AP in The Hague. "Where and how, we will discuss it."
The only barrier for the Libyan transitional government is whether or not they actually have the abiltiy to put Gaddafi on trial and to guarantee his safety as they do so.
Indeed, these are the central questions in the unfolding drama, not only because Gaddafi’s father was tortured and murdered immediately after his capture last month but also because the justice system in Libya at this moment is almost certainly not functioning at the level needed to meet international standards for a fair trial.
For my part, there are clearly positive and negative aspects to either outcome. If Gaddafi is tried locally, there’s no doubt that he will be convicted and executed, and that most Libyans would cheer this outcome. There will be all sorts of complaints from the international community and from human rights organizations about the process by which they arrive at this outcome and a fair amount of hand-wringing about a kangroo court and victor’s justice. He might also simply be killed in custody, which would be an even worse outcome. On the other hand, a trial at the ICC — while adding legitimacy to the Court’s endeavors — would likely be incredibly protracted, would almost certainly end with Gaddafi in a fairly comfortable prison cell for the rest of his life (or far worse, if the prosecutor somehow fails to make his case), and wouldn’t be regarded as justice at all by the majority of Libyans.
In other words, while the murder of one Gaddafi last month set off a fair amount of tooth-gnashing — and with good reason, don’t get me wrong — the capture of another Gaddafi doesn’t exactly mean a clear path to justice.