Colonel Muammar Gaddafi has not been captured by the Libyan Rebels. Nor has he been seen for many days. Upon his capture he should be tried in a court of law to highlight transformation from dictatorship to liberal democracy with a strong commitment to the rule of law.
Professor William Bishop defined the international rule of law as being the concept that includes a:
…reliance on law as opposed to arbitrary power in international relations, the substitution of settlement by law for settlement by force; and the realization that the law can and should be used instrumentality for the cooperative international furtherance of social aims, in such fashion as to preserve and promote the values of freedom and human dignity.
Colonel Gaddafi has been in power since 1969. Most Libyans can remember no other leader. He leaves a legacy of destruction, violence and tyranny. The Lockerbie bombing and the arming of the IRA are part of Gaddafi’s international trail of terror. In Benghazi, an underground prison has been discovered at Katiba El Fadil bu Omar (the Regime’s Benghazi prison). Captives held there had not seen daylight for decades.
In 1996, around 1,200 prisoners were killed in Tripoli for protesting against Gaddafi’s regime. At the time of the Benghazi uprising, Gaddafi called the people of Benghazi ‘rats’, and his regime called for the country to be ‘cleansed’. Numerous sites of mass murder have been uncovered.
The International Criminal Court (ICC) has issued a statement stating that:
[The Court] considers that there are reasonable grounds to believe that, under article 25(3)(a) of the Rome Statute, Muammar Gaddafi and Saif Al-Islam Gaddafi are criminally responsible as indirect co-perpetrators and Abdullah Al-Senussi is criminally responsible as indirect perpetrator, for two counts of crimes against humanity.
The Chief Prosecutor of the ICC, Luis Moreno Ocampo, says he has evidence from witnesses and documents that Colonel Gaddafi ‘personally ordered attacks on unarmed Libyan civilians’.
Gaddafi could be tried by a hastily assembled Libyan court. He could be ‘dealt’ with as soon as possible. That might offer retribution for the people of Libya. It will not give them justice. That kind of justice is no justice at all, and this demonstrates why the rule of law must be established in Libya.
For all his evil acts, Gaddafi should be tried in a court that has been properly assembled. A trial similar to those of Slobodan Miloševic, Ratko Mladic, and many other war criminals is both legally and morally the correct action to take.
The ICC requires nation states to execute warrants that it has issued. If the National Transition Council of Libya were to reject the warrant, and conduct their own trial, the establishment of the rule of law in Libya would seem to be under severe threat. That would be at a time when the new Libyan Government needs to show itself as having the desire to produce equality of justice.
To quote Winston Churchill:
In War: Resolution. In Defeat: Defiance. In Victory: Magnanimity. In Peace: Goodwill.
Colonel Gaddafi is a figurehead, and the majority of Libyans do not remember another leader of their country. If Libyans are able to show that they treat their oppressors with due process, and establish the rule of law, they will prove unequivocally that they are different to the system that they seek to replace.
The Arab Spring has shown the potential for change in countries that were once oppressive dictatorships. The capture and trial of Colonel Gaddafi will prove to be a pivotal moment for the Libyan people.
If Gaddafi is not tried by the ICC, or at least a properly constituted domestic court, then the process of introducing the rule of law, and respect for the international community in Libya, will be severely undermined.