Legal justice: too fine a pursuit for Libyans

Even before Saif Gaddafi’s capture over the weekend, preparations for the tug-of-war over where he should be tried were already well underway among liberal commentators and campaigners in the West. Many insisted that, despite the Libyan people’s wishes for him to face justice at home, the eldest son of the recently deceased former Libyan dictator Muammar Gaddafi should be tried by the International Criminal Court (ICC) in The Hague.

Evidently, from the ICC trial proponents’ point of view, a stooge army of Arabs is capable of doing the grunt work, scrabbling around in the desert to locate the Gaddafis, but they are incapable of undertaking the more civilised task of bringing them to justice. As Phillipe Sands QC wrote in the Observer, ‘in staying the hand of vengeance, The Hague judges will have to be involved’. Such mature work as putting a former dictator on trial can apparently not be entrusted to the vengeful, angry Arabs of Libya. Instead, it needs to be undertaken by their coolheaded, Western superiors.

Yesterday’s news that the trial of Saif Gaddafi is likely to take place on Libyan soil changes little about all this. As UK foreign secretary William Hague has explained, ‘it is within the rules of the ICC that people can be tried within the country concerned, by agreement with the ICC’. The ICC will effectively be bringing The Hague to Tripoli, with its judges operating behind the scenes, nudging Libyan judges in the right direction and ensuring the trial is conducted in a way that complies with ‘ICC standards’. The chief ICC prosecutor, José Luis Moreno Ocampo, is currently visiting Libya to negotiate the terms of the trial. He said: ‘In May, we requested an arrest warrant because Libyans could not do justice in Libya. Now, as Libyans have decided to do justice, they could do justice and we’ll help them to do it – that is the system.’

This ‘helping hand’ approach may suit the ICC very well indeed. Having only ever prosecuted black people, the ICC has often been open to charges of racism – and rightly so, as Brendan O’Neill has pointed out. Courtenay Griffiths, the British QC who acted as a defence lawyer at The Hague for former president of Liberia, Charles Taylor, has likened the ICC to a colonial enterprise. ‘How is it possible that we have a situation where every indicted individual at the ICC is African and every investigation is, guess where, Africa…? The ICC was set up to try those lesser breeds without the law – the Africans. This is the same civilising mission from the late nineteenth century and I find it, as a black man, totally objectionable.’

By operating behind the scenes, as in Saif Gaddafi’s case, ICC judges effectively get to black – or at least brown – up. They get to say hey, look, even Libyans can serve justice effectively – provided there is sufficient ICC cooperation involved. And Libya’s National Transitional Council (NTC), facing a crisis of legitimacy after having been largely cherrypicked to serve by the West rather than by the Libyan people, are able to claim that justice is being carried out on Libyan soil. This way, they hope to ensure an embarrassing and messy tug-of-war doesn’t ensue.

But despite the fact that the ICC will be there to offer the Libyans a guiding hand throughout the trial, certain organisations are still deeply dissatisfied with the idea of justice being done in the country where Saif Gaddafi carried out his crimes. Gaddafi had been noted for his brutal warning of ‘rivers of blood’ as revenge for the rebel uprisings, and now the likes of Amnesty International are reportedly fearful that Saif Gaddafi could face mob justice like his father did. Richard Dicker, international justice director of Human Rights Watch, has argued against a trial in Libya as ‘the NTC is burdened with many challenges, and taking on this legal proceeding will require extensive resources and capacity’.

The ICC, then, can lift that terribly burdensome mission from the Libyan people of bringing former dictators and their co-rulers to task. The Libyan justice system just isn’t up to scratch, according to Dicker. There would need to be ‘swift and substantial reform’ and the Libyans would need to prove they are ‘genuinely able and willing to prosecute the case in fair and credible proceedings’.

Instead of going through all that bother, why not just let Libyans watch and learn how civilised types mete out justice? Dicker calls for the new Libyan authorities to ‘send an important message that there’s a new era in Libya, marked by the rule of law, by treating Saif… humanely and surrendering him to the ICC… His fair prosecution at the ICC will afford Libyans a chance to see justice served in a trial that the international community stands behind.’

There you have it. The Libyan people may have suffered under the rule of the Gaddafi clan, they may have gone through the trouble of overthrowing a tyrannical system and locating the hiding places of former despots. But now all that blood, sweat and tears are out of the way, it’s important that they step back and allow their well-educated betters to carry out the final judgement. The Arab children have had their tantrum, now it’s time for the adults in the West to do the serious business. The Libyans can sit back, watch justice be carried out in their name and learn how to do it the right way.

The Libyan people may have achieved the remarkable feat of throwing off the paternalist shackles of Gaddafi and his sons, yet the ‘international community’ and the ICC look set to ensure that they continue to be infantilised for a good time yet.

Patrick Hayes is a reporter for spiked. Visit his personal website here. Follow him on Twitter @p_hayes.