Can the ICC successfully try Qaddafi?

“From an international legal point of view, the Libyan authorities are required to assist the court in arresting and extraditing Muammar Qaddafi and the other indictees, and to hand them over to the court,” says Nick Grono, deputy president of the International Crisis Group in Brussels. “It will be interesting to see what happens.”

The ICC in Libya

The ICC’s involvement in Libya goes back to June 27, when it issued arrest warrants for Qaddafi, his son Saif al-Islam, and Libyan intelligence chief Abdullah al-Senussi on charges of crimes against humanity for their role in the killing of civilian protesters.

Apprehension of Qaddafi, his son, and his intelligence chief would be just the beginning of a process, in which Qaddafi would enjoy the presumption of innocence, and in which the burden of proof for the prosecutor would increase with each step, from arrest, to indictment, to conviction or acquittal.

“Crimes in Libya were primarily committed against Libyans,” Mr. Ocampo said in a statement earlier this month. “The Court issued arrest warrants on 27 of June against three individuals. They are some of the most serious crimes of concern to the international community as a whole. That is why the UN Security Council referred the situation to the International Criminal Court in February 2011.”

Mr. Grono says that one of the greater obstacles to Qaddafi’s prosecution – using his position as leader of Libya to prevent his arrest by Libyan authorities – has now been removed as Qaddafi’s government has effectively collapsed.

“A successful prosecution of Qaddafi would be a huge impetus to the ICC,” says Mr. Grono, adding that the court has “a difficult job” and has been “finding its feet for the last eight years.”

“I suspect that if this case ends up before the judges, it could recast the story of the ICC," he says.

Obstacles for the ICC

Mr. Dicker of Human Rights Watch agrees that much of the criticism aimed at the ICC is valid, but says that it’s important to realize “how difficult the task of the prosecutor of this court is, how formidable the obstacles a prosecutor faces, and that is all the more difficult for a first prosecutor of this court.”

Unlike a district attorney in New York City, for example, who can call upon a police force to investigate a crime, as well as apprehend, charge, and hold onto suspects, the ICC relies on the governments of signatory countries – often the very regimes accused of war crimes – to arrest and extradite their own leaders and officials. In that context, efforts by the ICC are almost certain to be messy at best.

“Certainly, they [the office of the prosecutor] have been energetic, active, and indefatigable,” Dicker says.

Yet it is important for Ocampo and the ICC to get it right over the remaining months of Ocampo’s term as prosecutor, which ends next year, he adds.

“The prosecutor, before he leaves office next year, has work to do to finish some of the tasks in Eastern Congo, in Uganda, in Darfur," he says. "There is unfinished business Moreno-Ocampo must address and to convey to his successor, whoever he or she may be.”

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