Skip to content

3Qs: Prosecuting Qaddafi is tricky business

In reaction to Moammar Qaddafi’s use of deadly force on unarmed civilians protesting his regime, the International Criminal Court at The Hague has launched a formal investigation into possible crimes against humanity by the embattled leader. It’s also possible, some say, that if Qaddafi is deposed, he could face trial for the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland that killed 270 people — which his former justice minister alleges he ordered. Assistant law professor Sonia Rolland, who specializes in international law, discusses legal issues that may lie ahead for Qaddafi.

What likely scenarios does Qaddafi face before the International Criminal Court?

With respect to the Lockerbie bombing, there can be no proceedings at the International Criminal Court (ICC). The most obvious reason is that the bombing happened in 1988 and the court does not have jurisdiction over events prior to its establishment in 2002, when the Rome Statute — the founding treaty of the court — came into force. There are currently 114 state parties to the Rome Statute.

With respect to other crimes Qaddafi may have committed in Libya, there would be a number of hurdles to an ICC prosecution. Because of the timing issue, the court’s purview would be limited to relatively recent events. Second, the ICC has a very limited mandate to prosecute only four types of crime: genocide, crimes against humanity, war crimes, and crimes of aggression. Now that the United Nations Security Council has referred the situation in Libya to the court, the pre-trial chamber will need to collect enough evidence to be in a position to argue that the prosecution should go forward.

What is the likelihood that Qaddafi could face trial in Scotland for the Lockerbie bombing?

There has already been extensive litigation in relation to the Lockerbie bombing, both criminal proceedings and civil damages for the victims’ families. This earlier criminal case may have repercussions for who and what could be tried now. Also, prosecution in Scotland would require that Qaddafi be extradited to the United Kingdom, assuming he gets deposed in the first place.

It’s possible that a new Libyan government could grant extradition. Or, if Qaddafi travels abroad and is found, a host country might hand him over to UK authorities. On the other hand, a number of countries offer some level of immunity to former heads of state. In the meantime, as long as Qaddafi stays in power, there will be even stronger head-of-state immunity — this insures that leaders don’t get randomly arrested and sued when they travel internationally.

Even if the ICC indicts Qaddafi for crimes against humanity, what are the chances that he would ever show up in court? For instance, Sudanese President Omar al-Bashir was indicted by the ICC for genocide, crimes against humanity, and war crimes, but he disputes the charges and remains in Sudan. Just how difficult is it to punish an individual for these sorts of crimes?

The ICC relies on the cooperation of the police forces and the political goodwill of other countries to hand over accused persons to the court. It’s true that that can be a major hurdle to the court actually being able to prosecute someone. There is not a long history to go on here, so it is anybody’s guess how it might play out. What we do know is that the International Criminal Tribunals for Yugoslavia and Rwanda have operated with the same system, and the vast majority of suspects who have been indicted eventually made their way to the tribunals.