08.23.11 7:52 PM ET
Take Gaddafi Alive
The fall of a tyrant—or of a tyrant’s son and heir—is usually the cause of popular rejoicing followed by public vengeance. They are hanged from lampposts (the fate of Mussolini and his mistress) or rushed to kangaroo courts for predetermined death sentences (see President and Mrs. Ceausescu in Romania). But it is just possible, should Col. Muammar and Saif Gaddafi be taken alive, that we are entering a new and better era in which tyrants and their spawn will instead be dispatched to The Hague for fair trial in an international court for their crimes against humanity.
British Prime Minister David Cameron has made a serious mistake by insisting that the fate of the Gaddafis should be a matter for the Libyan people. This was the line George W. Bush took after the capture of Saddam Hussein, as a rhetorical cover for U.S. determination that the death penalty should be imposed on the Iraqi despot by politically manipulated local judges. Saddam’s trial was manifestly unfair: two judges who showed signs of independence were forced off the bench, and after a farcical appeal some obscene images of his hanging were captured on mobile phones and vengefully distributed.
It is too much to expect that if Gaddafi is captured alive he could receive justice at the hands of those whom he has repressed for so long. He controlled the judicial system, which must now be reconstructed from scratch, with judges independent of the new government. That government, the National Transitional Council, is a gimcrack organization, plainly unable to organize a fair or proper trial for him. The recent arrest and murder of one of its leaders, Gen. Abdel Fattah Younes—probably in revenge for his own excesses when he was killing for Gaddafi—demonstrate the danger that Libya’s new democracy will start with the rule of lynch law.
There is a more important reason of principle that the fate of the Gaddafis must not be left to the Libyans. The colonel is charged with crimes against humanity—the mass murder of civilians by perpetrating offenses so barbaric that the very fact that a fellow human being can commit them demeans us all. Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie and almost as many in a UTA passenger jet over Chad a few months later, are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that he face justice in The Hague and not in Benghazi.
Moreover, liberation has come to the Libyans by courtesy of international law, and they have a reciprocal duty to abide by it. With Resolution 1970, the U.N. Security Council decided to refer the situation there to the International Criminal Court (ICC), which in consequence, after a serious investigation, brought down the indictments on Saif, the colonel, and al-Sanussi, a relative who heads their intelligence service. With Resolution 1973, the Security Council mandated NATO action in order to protect civilian lives, and nobody pretends that the regime could have been overthrown without that air, sea, and logistical support. The rebel leaders have a legal duty to hand over any captured indictees to the ICC, and NATO leaders—Obama, Cameron, and Sarkozy—should insist that they do so. There must be no repeat of the Bush administration's error of allowing Saddam Hussein to be speedily executed for a minor offense while his greatest atrocities—e.g., the chemical-gas attack at Halabja that killed 7,000 civilians—went uninvestigated and unprosecuted.
Saif Gaddafi showed his true colors with his television broadcasts urging the murder of civilians. His criminal tendencies have long been obvious. In 2002, when I had to cross-examine this vicious man in a libel action he brought against The Sunday Telegraph in the U.K., which had exposed his role in sanctions busting, he was already a central figure in his father’s regime. He was sponsoring terrorism through his Gaddafi Foundation, rewarding Palestinian parents if their children became “successful” suicide bombers. He was nonetheless lionized in London by politicians so greedy for Libya’s oil business they were prepared to forgive his father for Lockerbie. (It may be some consolation to relatives of the victims of that atrocity that Saif and the colonel, if convicted of crimes against humanity, will spend longer in jail than Megrahi.)
International justice has had its critics. Remember the outrage over the arrest of Pinochet emanating from George Bush senior, Margaret Thatcher, Pope John Paul II, Cardinal Ratzinger, Henry Kissinger, and even Fidel Castro? When the ICC was first established, in 2002, Jesse Helms and George W. Bush went to the puerile extreme of passing the “Bomb the Hague” Bill (a.k.a. the American Service-Members' Protection Act), authorizing the president to use force to free any American who might fall into the clutches of the ICC prosecutor.
In the space of only a decade, the spectacle of Karadzic and Mladic in The Hague's dock and the trial of Charles Taylor (whose verdict is expected next month) have established the principle that there must be no hiding place for those who order the most heinous crimes. No state should offer sanctuary to Gaddafi, and any regime that does so deserves to be crippled by U.N. sanctions until it disgorges him.
Perhaps most important, the idea of putting tyrants on trial has caught on in the countries they tyrannize. The slogans in the Syrian streets this week read “Al-Assad to The Hague.” There is an expectation of justice that has arisen in the Arab Spring, and Western leaders must not disappoint it. “Gaddafi to The Hague” will send a chilling signal to all other governments tempted to kill their own people. There is no decent or lawful alternative.