What kind of Libyan justice?

Tory MP Dominic Raab has a piece in The Times today (£) about the need for Libyans to rely on the International Criminal Court in the Hague, rather than seek retribution and revenge against Colonel Gaddafi and his loyalists in Libya. A former Foreign Office lawyer, Raab knows his subject well. But I can’t help but quibble with a few of his points. For the history of the International Criminal Tribunal in Yugoslavia, a precursor to the ICC, raises questions about how societies can best deal with such crimes.

The ICTY allowed space for the post-conflict consolidation to take place before indicting criminals. In contrast, the ICC issued an indictment against Gaddafi very quickly, which left the Libyan dictator little room for manoeuvre. It came right in the end, but the risks were greater. The UN Security Council was right to refer the Libyan case to the ICC, but a smarter Chief Prosecutor might have waited to indict or issued a sealed indictment first.

In other respects, however, the ICTY experience is less than salutary. Its work was slow. Worse, by removing those indicted from the region and conducting the cases in a far-away country, the whole issue of post-war justice was somehow removed from the region and its people. Citizens could not see the court at work, walk past its facilities, and feel it was a real place. As such, it became easier for opponents to paint it as a foreign plot and for normal people to forget about its work. When it ran out of money, it had to develop a strategy of devolving cases back to Bosnia, and local courts were ill-prepared for the court proceedings.

These are important considerations when deciding how far to rely on the ICC in Libya. The ICC is already suffering from being seen as a pro-Western and anti-African vehicle. This is patently an untrue charge, but issues of legitimacy cannot be divorced from justice. Trying Gaddafi there will encourage this narrative.

So what to do? I agree with Raab that trying Gaddafi at the ICC may be the only viable option at this stage, given the nature of the Libyan judicial system. But it would be best if the Libyans decided to deal with all other criminals through a specialised court, where Libyan judges can sit side by side for a limited period with international judges. This will guarantee that justice is meted out to an appropriate standard, while the Libyan justice system is built up for the future.