The International Criminal Court's chief prosecutor said Wednesday she expects the Libyan government's support and cooperation if judges rule that the son and one-time heir-apparent of late Libyan dictator Moammar Gadhafi must be tried by the war crimes tribunal — not by a Libyan court.
On the other hand, Fatou Bensouda told the U.N. Security Council that if the judges decide that Seif al-Islam Gadhafi should be tried by a Libyan court "my office will monitor those proceedings and cooperate with Libya to the extent my mandate allows."
Gadhafi was indicted last year by ICC prosecutors on charges of murdering and persecuting protesters in the early days of the popular uprising that ultimately toppled his father's regime. He is being detained by an armed militia in the Libyan town of Zintan, and Libya's new rulers have challenged the ICC saying they want to move him to Tripoli and put him on trial.
The 10-year-old ICC based in The Hague, Netherlands, is a court of last resort, meaning it only takes on cases from countries where authorities are unwilling or unable to prosecute defendants for war crimes, crimes against humanity and genocide.
The pre-trial judges have to weigh the desire of Libya's new government to prosecute Gadhafi against their ability to do so in a nation still in post-conflict turmoil where the rule of law is being slowly rebuilt after more than four decades of neglect under his father's regime.
Bensouda told the Security Council that the judges will make a decision "in due course."
Libyan authorities have taken note of criticism from human rights organizations and Security Council members, Dabbashi said, and "are firmly determined to install the rule of law and establish a comprehensive and effective legal system."
At a hearing in The Hague in October, however, a lawyer for Seif al-Islam Gadhafi from the ICC Office of Public Counsel for Defense warned the judges that the international court's reputation will be damaged if it allows Libya to put him on trial.
Melinda Taylor said trial in Libya will be "not motivated by a desire for justice but a desire for revenge and there is no right for revenge under international law."
Bensouda cited a Libyan law granting amnesty to those who committed crimes necessitated by the revolution and encouraged the new Libyan government due to be sworn in shortly "to ensure that there is no amnesty for international crime, and no impunity for crimes regardless of who the perpetrator is and who is the victim."
Richard Dicker, international justice director at Human Rights Watch, said the amnesty law and others "are in effect spitting in the face Libya's obligation to prosecute those responsible for horrific crimes, regardless of whose side they were on."