Who Tries Gadhafi’s Son Could Determine Future of Concept of National Sovereignty

June 12, 2013 10:42 am 1 comment

The International Criminal Court in The Hague (ICC/CPI), Netherlands. Photo: Vincent van Zeijst.

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.

This article was originally published by the Pittsburgh Tribune Review.

1 Comment

  • Danny Hurley

    Are you sure it’s not more to do with Saifs British connections (Tony Blair, Lord Mandelson, Nathaniel Rothschild, London School of Economics), than fabricated and trumoed up human rights abuses? Im sure some within the Libyan council are aware of the situation!

Leave a Reply

Please note: comments may be published in the Algemeiner print edition.


Current day month ye@r *

More...

  • Book Reviews Personalities How a Jewish Leader With 3 Months to Live Created a ‘Seminar’ on Life

    How a Jewish Leader With 3 Months to Live Created a ‘Seminar’ on Life

    JNS.org – What would you do if you found out that you had only three more months to live? Gordon Zacks was a successful businessman, a leader of Jewish life, and a confidante and adviser to President George H.W. Bush. He knew that he had prostate cancer, but doctors advised him that it was very slow-growing and nothing to worry about. Then came the day when the doctors told him his cancer metastasized to his liver, and that he had [...]

    Read more →
  • Blogs Theater 10 Things I Learned From My Play About Holocaust Denial

    10 Things I Learned From My Play About Holocaust Denial

    Last month, my one-man show Hoaxocaust! Written and performed by Barry Levey with the generous assistance of the Institute for Political and International Studies, Tehran ran in the New York International Fringe Festival, where it won an Overall Excellence Award. The play has now been selected to run in the Fringe Encores Series at Baruch College’s Performing Arts Center, for four performances which started on Thursday, September 11. Getting the play to the stage was not easy, however. Here are [...]

    Read more →
  • Arts and Culture Israel Israeli Music Producer Racks Up Over 535,000 YouTube Hits – in Two Days

    Israeli Music Producer Racks Up Over 535,000 YouTube Hits – in Two Days

    Phenomenon: Tel Aviv-based musician and “sampler” extraordinaire, Kutiman (aka Ophir Kutiel) has hit another one out of the park with “Give It Up,” a fully-functioning song in its own right, assembled from hundreds of ameteur and instructional music videos. The Jerusalem-born musical prodigy is best know for his diverse online musical projects. In the latest video, uploaded to YouTube on Sept. 12th, Kutiel thanked most of the musicians and individuals he chose to include in the meticulously-edited clip, which opens with [...]

    Read more →
  • Theater US & Canada Behind-the-Scenes Reel of Ridley Scott’s Moses Epic Shows Scenes Using 4000 Extras (VIDEO)

    Behind-the-Scenes Reel of Ridley Scott’s Moses Epic Shows Scenes Using 4000 Extras (VIDEO)

    A recently released behind-the-scenes reel of Ridley Scott’s upcoming film Exodus: Gods and Kings shows just how far the director has gone to portray one of the Bible’s most famous narratives. In the clip, which shows scenes involving up to 4,000 extras, the visionary director discusses what drew him to the biblical tale of Moses. “The Moses story was a massive challenge, which I really love. I wanted to explore the complexity of his character and I was stunned by [...]

    Read more →
  • Arts and Culture Jewish Identity Turner Classic Movies Showcases ‘Broad Sweep’ of the Jewish Experience on Film

    Turner Classic Movies Showcases ‘Broad Sweep’ of the Jewish Experience on Film

    JNS.org – Since 2006, the Turner Classic Movies (TCM) cable and satellite TV network has hosted “The Projected Image,” a month-long showcase examining how different cultural and ethnic groups have been portrayed on the big screen. At last, after previously covering African Americans, Asians, the LGBT community, Latinos, Native Americans, Arabs, and people with disabilities, the annual series is delving into Jewish film this month. “The Projected Image: The Jewish Experience on Film,” whose first segment aired Sept. 2, runs [...]

    Read more →
  • Book Reviews Jewish Identity An Inside Look at the Hasidim (REVIEW)

    An Inside Look at the Hasidim (REVIEW)

    The sight of young girls in pinafores and young boys wearing peyos – sidelocks – dangling over their ears is a sure sign that you have entered the enigmatic precincts of the Hasidim – the pious ones. Veteran New York Times journalist Joseph Berger’s new book, THE PIOUS ONES: The World of Hasidim and their Battles with America, takes the reader on a journey into the enclaves where various sects of Jews live a seemingly outmoded way of life in [...]

    Read more →
  • Arts and Culture Jewish Identity How Jewish Television Pioneer Milton Berle Inspired Modern Comedy Stars

    How Jewish Television Pioneer Milton Berle Inspired Modern Comedy Stars

    JNS.org – Today’s comedy superstars, especially those whose careers are driven by television, may very well owe their success to pioneering Jewish entertainer Milton Berle. Born Mendel Berlinger in Manhattan in 1908, Berle became America’s first small-screen star. Aptly nicknamed “Mr. Television,” he influenced and helped promote the work of hundreds of younger comics. “Milton Berle was deceptively successful and very Jewish,” says Lawrence Epstein, author of The Haunted Smile: The Story of Jewish Comedians in America, published the year [...]

    Read more →
  • Jewish Identity Sports Jewish ‘Hoops Whisperer’ a Secret Weapon for NBA Stars

    Jewish ‘Hoops Whisperer’ a Secret Weapon for NBA Stars

    JNS.org – Idan Ravin’s friends chipped in to buy him a humble but life-changing bar mitzvah gift—a basketball hoop his father attached to the roof of his garage. Little did his friends know that years later, he would be the personal trainer of National Basketball Association (NBA) stars Carmelo Anthony, Kevin Durant, Dwight Howard, and Stephen Curry. Ravin’s new book, “The Hoops Whisperer: On the Court and Inside the Head of Basketball’s Best Players,” details his rise from a Jewish upbringing [...]

    Read more →



Sign up now to receive our regular news briefs.