Analysis: What should justice for Qadhafi look like?

As rebels shore up control of Libya and hunt for the man who ruled the country for 42 years, the legal prospects for Muammar Qadhafi are as murky as the political vacuum he leaves behind.

US and other officials believe that Qadhafi remains in Libya and may be hiding in one of the desert or coastal patches still under control of his remaining loyal forces. But wherever Qadhafi is found, there is no shortage of jurisdictions that are laying claim to him.

In the days since rebel forces moved into Tripoli and found that Qadhafi had bolted, several senior members of the umbrella National Transitional Council (NTC) have insisted the next government can and will try him for crimes committed against the Libyan people.

At the same time, Qadhafi, one of his sons and his former military intelligence chief are wanted for alleged crimes against humanity by the International Criminal Court (ICC). The Hague-based institution was created a decade ago by the Rome Statute, a treaty now ratified by 117 countries, as a successor to war-crime tribunals for the former Yugoslavia and Rwanda.

And several members of the US Congress say they want Qadhafi brought to the United States to face charges for the 1988 bombing of Pan Am Flight 103, which killed 270 people, and a 1986 assault on a Berlin discotheque that killed two US servicemen.

New British, French and German claims on Qadhafi could also emerge from decades-old terrorism blamed on Libya, while neighboring Chad or other past enemies could jump into the fray.

There is no one legal authority governing what happens to an ousted dictator with a history of repression at home and terrorism abroad. If Qadhafi is taken alive, it will probably be politics rather than international law that would determine where he faces prosecution, just as global politics at the UN Security Council generated the case against Qadhafi at the ICC.

The international pursuit "was not the decision of a bunch of lawyers in The Hague," said Sean Murphy, a George Washington University law professor and former State Department lawyer. "This was a decision that was in large part unleashed by the political will of countries at the UN."

For now, those politics are favoring the judicial preferences of the transitional government.

Politics and justice

After the fall of Tripoli last week, Obama administration officials stressed that Libyans themselves should decide what happens to Qadhafi, as long as the solution meets "the highest standards of international justice."

But this week Secretary of State Hillary Clinton and other US diplomats suggested Qadhafi's future is a less-important priority than securing Libya's chemical weapons, reducing the potential for Islamic extremism there and steering the new Libya toward democracy. In a background briefing ahead of Clinton's meeting with NTC leaders in Paris this week, two senior State Department officials said "the Qadhafi situation" would not be discussed in detail, let alone be an issue that Washington is going to push. Clinton did not mention Qadhafi's legal status at a post-meeting news conference.

Of course, the problem with leaving a Qadhafi trial to the Libyans is that they currently have no judicial system.

Under Qadhafi, Libya's justice system was based on Islamic law, but special "revolutionary courts" and military courts dealt with all perceived political offenses and crimes against the state. The Benghazi-based TNC has repeatedly said it wants to draft a new constitution, without saying what that would look like.

The sometimes-contradictory statements on Qadhafi and other subjects coming from NTC – fraught with ethnic and regional divisions that hobbled its battlefield plans – have not fostered confidence in the rebels' ability to govern or produce a working legal framework.

"No one has a sense of what they'll do," said David Kaye, the head of UCLA's International Human Rights Law Program and a former legal adviser to the American Embassy in The Hague, who participated in the Yugoslav war-crimes trials.

Complicating a potential Libyan prosecution is that several NTC officials were once high-ranking members of Qadhafi's regime, who may have blood on their own hands and might be reluctant to see the past hashed out in court, Kaye said.

Crimes against humanity

It is possible a fledgling Libyan successor to Qadhafi's regime would want to curry international favor by sending him to the ICC, or that if Qadhafi is caught abroad another government would do so.

A prosecution in The Hague would put Qadhafi in a much more established legal setting.

The ICC in June issued arrest warrants for Qadhafi, his son and onetime heir Saif al-Islam Qadhafi, and spymaster Col. Abdullah al-Senussi for crimes against humanity.

Prosecutors charged that after the governments of Tunisia and Egypt collapsed during the "Arab Spring," Qadhafi used state forces and resources to deter and quell "by any means, including by the use of lethal force, the demonstrations of civilians against the regime."

The charges only cover crimes allegedly committed during the last two weeks of February, and an eventual ICC prosecution could include more charges and more members of Qadhafi's family and government.

ICC rules allow member states to deal with war crimes on their own first, but Libya is not a member state. (Neither is the United States, though the Obama administration has promised to cooperate with the ICC.)

Like the trials for war crimes in the former Yugoslavia and Rwanda, an ICC trial of Qadhafi would likely take years of pretrial investigations, depositions and actual testimony before reaching a verdict. The prosecutors would have to take the broad charges laid out in the arrest warrants and build a case through hundreds and possibly thousands of witness interviews and evidence gathered on the ground in Libya. With such cases at the tribunal for the former Yugoslavia, that included block-by-block video recordings in many of the towns where atrocities took place.

The ICC would pay for counsel if an exiled Qadhafi could not afford his own lawyers, and he would have the right to challenge the admission of all the evidence and the testimony of the witnesses. Complicating matters further, the ICC has provisions allowing witnesses to testify anonymously if they fear retribution, and the defendant can dispute such allowances for each witness.

The biggest challenge, though, would be getting Qadhafi there.

If Qadhafi flees Libya, several other African countries would likely give him shelter.

Zimbabwe, which is not a party to the treaty creating the ICC, has made clear it still regards him as a friend. The leaders of South Africa, which is an ICC member state, nonetheless remain loyal to Qadhafi for the backing he gave them in opposing Apartheid. And while the South African government has not said he'd be welcome, it has called on the ICC to investigate whether NATO committed war crimes with its air support of the rebels.

In neighboring Egypt, the government successor to ousted President Hosni Mubarak had no qualms about flouting an ICC warrant. Sudanese President Omar al-Bashir, indicted by the ICC nearly three years ago for his government's atrocities in Darfur, was one of the first foreign leaders to visit post-Mubarak Egypt, knowing he faced no danger of arrest in doing so.

The ICC has no power to enforce its own arrest warrants, relying on the United Nations Security Council to employ the diplomatic muscle against states that fail to cooperate. And the Security Council has a poor record on that front.

It was the Security Council that first referred Qadhafi's actions to the ICC, and the ICC indictment helped keep the international anti-Gaddafi coalition together during the months when Libya appeared to be at a stalemate. But while the council urged all non-ICC member states to cooperate, it did not threaten sanctions or other repercussions for failing to do so.

And if Qadhafi is out of the picture in Libya, it may be difficult to generate enough votes on the Security Council to force another government to give him up. Neither Russia nor China are fans of the ICC, and either could veto any effort to forcibly extradite him.

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