Sign up now to receive our regular news briefs.

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. Comments written in all caps will be deleted.

Current day month ye@r *


  • Arts and Culture Beliefs and concepts What’s That Huge White Bridal Dress Floating Over the Tower of David?

    What’s That Huge White Bridal Dress Floating Over the Tower of David? –  “What’s that huge white bridal dress floating over the Tower of David?” That’s what visitors to Jerusalem’s Old City asked last week. The wedding gown, created by leading Israeli artist Motti Mizrachi, is part of the 2nd Jerusalem Biennale for Contemporary Jewish Art, an event that blew into town as the Sukkot holiday got underway. Mizrachi, who lives and works in Tel Aviv, created the dress that floats majestically over the Tower of David, the main exhibition site […]

    Read more →
  • Features Opinion The Top 10 Places to Visit in Israel

    The Top 10 Places to Visit in Israel

    Israel is a holiday destination on many travelers’ bucket lists. No matter the style of holiday you are after, Israel has the answer. Whether you prefer to relax by the beach, hike up mountains in the desert, visit religious and historical sites, eat your way through the country or just enjoy some retail therapy, your journey through Israel will be one to remember. While there are obviously so many things to see and do, here is a list of 10 of […]

    Read more →
  • Pioneers/Philanthropists US & Canada Jewish American Fashion Mogul Ralph Lauren to Step Down as CEO

    Jewish American Fashion Mogul Ralph Lauren to Step Down as CEO – Jewish American fashion mogul Ralph Lauren announced his plan to step down as chief executive officer of the renowned fashion brand. The head of Gap Inc’s Old Navy brand will take over the position. The 75-year-old Lauren, who founded Ralph Lauren Corp. in 1967, will continue to serve as executive chairman and will continue leading the fashion house’s design team, according to a statement by the company. After the announcement, Ralph Lauren shares rose 3.79 percent while Gap shares […]

    Read more →
  • Featured Sports US & Canada Jewish Boxer Dustin ‘White Tiger’ Fleischer Scores Fourth Knockout Victory

    Jewish Boxer Dustin ‘White Tiger’ Fleischer Scores Fourth Knockout Victory

    Jewish boxer Dustin Fleischer, who said his quest is to become the first world champion descended from a Holocaust survivor, stayed unbeaten with a first-round knockout. Fleischer, nicknamed “The White Tiger,” moved to 4-0 with the defeat of Ira Frank on Saturday night in Beach Haven, New Jersey, near his home, he reported after the fight on his Facebook page. The 26-year-old welterweight has won all his bouts by knockout. Read full story at JTA.

    Read more →
  • Featured Israel Pioneers/Philanthropists Meet Israel’s Santa Claus, the Trustee Tasked With Handing Out Leona Helmsley’s Billions (INTERVIEW)

    Meet Israel’s Santa Claus, the Trustee Tasked With Handing Out Leona Helmsley’s Billions (INTERVIEW)

    Renowned New York attorney Sandor (Sandy) Frankel, one of four trustees of the Leona M. and Harry B. Helmsley Charitable Trust, was in Israel earlier this month to look at additional philanthropic options and to observe the progress of those endeavors already funded – to the tune of multi-millions. Frankel, who recently joined the prestigious Park Avenue law firm Otterbourg P.C., met with Israeli politicians and other bigwigs to get a sense from them about which projects in the country […]

    Read more →
  • Book Reviews Food Spirituality/Tradition ‘Pastry Secrets’ Arrive Just in Time for Rosh Hashanah

    ‘Pastry Secrets’ Arrive Just in Time for Rosh Hashanah – Babka. Strudel. Stollen. Danish pastry. Not to mention Gugelhopf and Charlotte. The names set the mouth to watering and conjure up lovingly concocted pastries that feed the body and comfort the soul. If you didn’t have a grandmother who baked these delicacies, you wish that you had. George Greenstein was never a grandmother, but his life as a baker provided his children and grandchildren with memories infused with the smell of fresh baked bread and rugelach. His daughters, Julia […]

    Read more →
  • Book Reviews Spirituality/Tradition Fusing Israeli and Holocaust History, Novel Offers a ‘Middle Eastern Western’

    Fusing Israeli and Holocaust History, Novel Offers a ‘Middle Eastern Western’ – There is a game that all of us have played at some time in our lives. We ask ourselves: What would my life be like if I had gone to this school instead of that one, or if I had married this girl instead of that one? In their newly published book The Ambassador, authors Yehuda Avner and Matt Rees play that game with modern Jewish history. Avner — who died earlier this year, and was a speechwriter, secretary and adviser to […]

    Read more →
  • Israel Lifestyle A Toulouse Fashion Student Finds Style and Harmony in the Holy Land

    A Toulouse Fashion Student Finds Style and Harmony in the Holy Land

    A unique group of young fashion bloggers and designers recently visited Israel to learn more about the country’s fashion industry and diverse culture. Hailing from the Philippines, Korea, Kenya, Japan, Brazil, Spain, France, Germany, Russia, and the U.K., the 10 participants toured the country and met with top Israeli fashion designers throughout last week. “It was an amazing experience,” said Meissene Maghni from Toulouse, France — one of the participants of the program. “I’m Muslim and I really wanted to see Israel […]

    Read more →