The international community played a critical role in aiding the Libyan rebel campaign that ultimately led to the ouster and death of Muammar Qaddafi. Now, the international community may yet play another crucial role as Libya attempts to demonstrate its ability to prosecute prominent members of the former regime in a manner that upholds international standards of justice.

Saif al-Islam Qaddafi, son of Muammar Qaddafi, was captured two weeks prior and the Libyans have insisted that he will be tried in a Libyan court. His fate will likely be determined by Libya’s interim leadership, which is primarily led by the National Transition Council. Concerned human rights groups have urged the interim leadership to transfer Saif al-Islam to the International Criminal Court (ICC) in The Hague, fearing that his rights could be violated if he is tried in Libya.  

Libyan officials, including interim Prime Minister Abdurrahim al-Keib have made repeated assurances, however, that Saif al-Islam will be treated appropriately. Additionally, the British Foreign and Commonwealth Office has said it is satisfied with the Libyan assurances to this point, and even ICC chief prosecutor Luis Moreno-Ocampo has said trials can take place in Libya, but with international help: “Libyans…could do justice and we’ll help them do it”. 

Absent international assistance, there are serious questions regarding Libya’s ability to hold trials. Libya does not possess the institutional capacity – the Qaddafi regime left behind no judiciary to speak of – nor the knowledge and experience necessary to carry out trials of prominent figures accused of human rights abuses and war crimes. As such, Libya’s new leadership will be building completely new legal institutions from scratch, at the same time it is conducting arguably the most high profile prosecution in the world.  

Furthermore, Libya must heed the lesson of Iraq and its trial of Saddam Hussein. A lack of competence combined with a lack of seriousness (the international community included) in ensuring a proper trial led to what many analysts concluded was a political show trial.   The trial and execution of Saddam Hussein did much to tarnish the new leadership in Baghdad – even President George W. Bush conceded the manner of the execution bolstered accusations and suspicions that the new government was not serious. In addition, the sectarian tensions that were inflamed by the execution raised questions  about the new regime’s ability to lead a post-Saddam Iraq towards a stable democratic future. 

Concerted efforts from the international community, particularly the ICC and European governments basking in goodwill following the NATO campaign, can help ensure that a Libyan trial of Saif al-Islam will avoid a similar fate. Together they possess the know-how and the resources necessary to hold major trials dealing with human rights and war crimes. As such, they, along with the United States, can provide the technical assistance and consultation the Libyans will need. Additionally, any aid packages already being considered for Libya should include provisions that could assist and facilitate trial proceedings, such as providing necessary equipment and supplies. British Prime Minister David Cameron has already offered assistance to the Libyan government “to bring [Qaddafi] to face full accountability and justice.” Such efforts should be encouraged and supported.The Europeans in particular cannot stand on the sidelines as they did in Iraq. Such international assistance would not only enhance the legitimacy of the trials, but also, as legal experts have argued, help Libya build the capacity to establish its own independent judiciary, which in turn will aid in its transition to democracy.  

Obstacles do exist to such cooperation, including differing views in Europe and Libya over the death penalty. Europe and the ICC have prohibited capital punishment whereas Libya maintains the practice. In fact, many Libyans wish to see Saif al-Islam executed for his actions. European nations and the ICC may be reticent to provide assistance given the near certainty that Saif al-Islam will face death.  

Such concerns may have contributed to the ICC’s increasingly mixed messages.The Court recently reaffirmed its jurisdiction over Saif al-Islam through a spokesman, while its chief prosecutor has stated repeatedly that the Libyans may try him in Libya. To prevent the Libyans from handling the case, however, would (to borrow Voltaire’s now commonly paraphrased aphorism) allow the perfect to be the enemy of the good. An ICC trial may be more secure and certain to abide by international standards, but it precludes any chance of jumpstarting the development of a Libyan judiciary and would anger the Libyan people who wish to see Saif al-Islam tried in Libya. A compromise solution has been proposed and should be seriously considered – the ICC itself may hold the trial in Libya, rather than at its headquarters in The Hague. While far from a perfect solution, doing so may alleviate the concerns of the international community while allowing Libyans to see Saif al-Islam tried on their soil. 

A more pressing obstacle is the fact that Tripoli does not actually have Saif al-Islam in custody. He remains in the custody of the Zintan militia that captured him, and its leadership has not shown a great deal of interest in handing him over to the interim government. In fact, the Zintan militia has said it would consider trying him in its own court, but stated they would wait and see if Tripoli could develop an adequate court system.  

Thus, the role of the international community may once again be essential to Libya’s progress towards a democratic future. Assistance provided to Tripoli in establishing an adequate court system may not only encourage the transfer of Saif al-Islam to the interim government’s custody, but also create the foundations for an independent judiciary in Libya – a necessity for any functioning democracy.  

Certainly, proof of an adequate court system may not convince the Zintan militia to hand over Saif al-Islam more than the inclusion of one of their leaders, Osama Juwali, in the new cabinet; but, insincerity in that regard does not negate the benefits of providing international assistance. The establishment of a strong judiciary is unequivocally a good thing and could aid Libya’s transition to democracy. Differing views on capital punishment should not be allowed to undermine those ends. Additionally, if the NTC-led interim government continues to engage with the militias as it recently has done, not to mention include them in the governing of Libya, the militias may be willing to utilize the system and abide by its principles as well. 

The international community can enable Libya to try Saif al-Islam, and any other defendant, in a manner consistent with international standards of human rights and justice. In so doing, it will have also helped to build an essential pillar for a future democratic Libya, an independent judicial system. 

Yuvaraj Sivalingam is an intern in the Atlantic Council’s Rafik Hariri Center for the Middle East and formerly served as an Executive Director of the Foreign Affairs Symposium for Johns Hopkins University.