Former Libyan leader Muammar Gaddafi in Rome in 2009; if captured alive, Gaddafi likely faces a tribunal prosecution in Libya for crimes against humanity. Photograph: Reuters/Max Rossi
Sunday, October 2, 2011
Muammar Gaddafi And The Justice Tyrants Face
If the Libyan dictator is taken alive, Libyans will decide how he will be tried. We forget how recent a historical precedent this is
By Mark Vlasic
When Interpol announced its "red notice" arrest warrants for Muammar Gaddafi and his son, Saif al-Islam, it served as a reminder that if they are captured, it won't just be the Libyan rebels knocking at the Gaddafi door, but also the knock of justice. Times have changed since "Brother Leader" took power in 1969. Back in the 20th century, and for all the centuries before it, no head of state had ever been brought to justice for war crimes. But in this new century, the drumbeat of justice has gotten louder – and it has taken its toll on some of the most infamous dictators of our time.
Slobodan Milosevic, Saddam Hussein and Charles Taylor never thought they'd find themselves in the dock – but they did. And if Gaddafi is captured alive, whether he will be tried at home or abroad, justice will be served; and the impunity so often enjoyed by dictators of the past will find itself in "the dustbin of history".
With the UN's recent recognition of the Libyan Transitional National Council (TNC), the TNC must consider what to do with Gaddafi – and how the former "colonel" will be held accountable for the atrocities perpetrated on his watch. This decision will determine whether the Gaddafi's path to justice will follow that of a domestic court, an international ad hoc or hybrid tribunal, or the permanent International Criminal Court (ICC) in The Hague.
The forums in which former heads of state have been tried have been diverse and widespread. When Slobodan Milosevic was captured following the war in the Balkans, justice was done via a United Nations-formed an ad hoc tribunal. A UN security council-charted institution, the International Criminal Tribunal for the former Yugoslavia – where I once served – was established to investigate and prosecute war crimes, crimes against humanity, genocide and grave breaches of the Geneva conventions, perpetrated after 1991. With this mandate, the ICTY indicted 161 individuals, and recently captured its last remaining targets, including Bosnian-Serb General Ratko Mladic, indicted, in part, for his role in the Srebrenica genocide.
More recent trials of heads of state, including Saddam Hussein of Iraq and Charles Taylor of Liberia, have incorporated both international and domestic law, operating in hybrid court-type scenarios. In an effort to bring visible justice to the people of Iraq after Saddam Hussein was removed from power, the Iraqi Special Tribunal (IST) was established. The IST operated in Baghdad, under the domestic laws of Iraq, but the judges were also given special training in international criminal law, which complimented the Iraqi criminal code. Charles Taylor, however, is currently being tried in The Hague by a full-fledged hybrid tribunal, the special court for Sierra Leone, which is supported by the United Nations.
In many ways, however, Gaddafi's possible move to the Netherlands may already be in play. After the UN security council's referral of the Libyan matter to the ICC, prosecutors in The Hague pursued a criminal indictment and the court issued arrest warrants for the Libyan leader, as well as his son, and his military intelligence chief, Abdullah Senussi. All three stand accused of crimes against humanity, including killing civilian protesters during Libya's Arab Spring.
It is possible, however, that an ICC, ad hoc or hybrid model of justice for Gaddafi may not provide the visible justice that the Libyan people will demand. In this case, one might consider that only a national court, or truth commission, may provide the accountability and closure of seeing the former tyrant or his henchmen before a local tribunal. No doubt, Libyans are watching Egypt and taking notes as events in Cairo play themselves out.
No matter what path it chooses to try Gaddafi, the TNC may consider establishing a truth and reconciliation commission (TRC). Past TRC-type institutions include the Sierra Leone commission that ran from 2002-2004, the Rwandan Gacaca courts that are ongoing, and the post-apartheid South African truth and reconciliation commission, which invited witnesses who were identified as victims of gross human rights violations to give statements about their experiences, while also giving an opportunity for perpetrators to give testimony and request amnesty from both civil and criminal prosecution.
In the case of Sierra Leone and Rwanda, truth commissions were designed to compliment ad hoc tribunals, which tend to focus on those most responsible for atrocities, thus extending some sense of justice to those who may never otherwise see the inside of a courtroom. In so doing, truth commissions have been effective at providing visible justice to those most acutely affected, by bringing witness testimony and official reforms to local communities.
The TNC maintains that it will pursue the avenue of justice most desired, and most appropriate, for the Libyan people. Accordingly, we must accept that the best option for the Libyan people may not be the one that is pushed by the "internationals". During my time working on the Milosevic prosecution team, I never met a Serb in Belgrade who didn't think that the former "Butcher of the Balkans" should have been tried first in Belgrade for corruption. Many individuals I met during my time at the UN, and since, have expressed to me that they thought the UN war crimes tribunal robbed them of domestic justice when Milosevic was whisked away to The Hague.
Historians may yet decide what would have been best in the case of Milosevic; for the moment, the critical decision in Libya has already been made by the TNC. Gaddafi will be tried for his crimes. And no matter what the forum, with his trial will come the justice his victims deserve to see – and an end to the impunity so often enjoyed by these tyrants.
-This commentary was published in The Guardian on 01/10/2011- Mark V Vlasic is an adjunct professor of law at Georgetown University and partner at Ward & Ward PLLC, and has served as head of operations of the World Bank's stolen asset recovery initiative. A former member of the Slobodan Milosevic prosecution team, he currently serves as international legal adviser to the Charles Taylor/Liberia asset recovery team and as a senior fellow at Georgetown's institute for law, science and global security