Why Gaddafi's Legal Fate Remains Contentious

Even as the manhunt for Colonel Muammar Gaddafi and his key aides continues, there are signs of division among Libya's rebel leaders — and between them and many ordinary Libyans — over how to proceed if the ousted dictator is captured alive. Gaddafi, his powerful son Saif al-Islam, and his intelligence chief Abdallah al-Senousi have eluded capture since slipping out of Tripoli during last week's turmoil in the capital. The three fugitives face charges of crimes against humanity by the International Criminal Court (ICC) in the Hague for allegedly ordering security forces to kill unarmed protesters in February, and Libya's new leaders are in theory obligated under U.N. rules to send them to the Netherlands to stand trial.

But sending Gaddafi and his aides to face international justice could put the rebel National Transitional Council (NTC), recognized by Western and Arab governments as the legitimate government of Libya, on a collision course with many Libyans who want to see Gaddafi face justice at home, not only for the killings during the six-month uprising, but from countless human-rights violations during his 42-year dictatorship.

Finding the Gaddafis and other key military and political figures of the regime has been made a priority by the rebel leadership, which believes loyalist forces will end their stubborn resistance once they learn that their leader is under lock and key. On Wednesday, NATO bombed several key military targets around Sirt, Gaddafi's hometown, about 300 miles (480 km) east along the Mediterranean from Tripoli. It is not known whether Gaddafi or his aides are in Sirt, however; on Tuesday a young security guard for Gaddafi's son Khamis told Sky News that the family, including Gaddafi himself, had slipped out of Tripoli last Friday in an armored convoy bound for the Sahara base of Sabha, at a crucial intersection on the road to Algeria, and which the regime still controls. Khamis was reportedly killed when NATO bombed the convoy.

NTC statements about the international indictments are ambiguous — hardly surprising, perhaps, given the fact that many of those in the rebel leadership were very recently part of the regime. Council leader Mustafa Abdel-Jalil, who had been Gaddafi's Justice Minister when the Benghazi rebellion began in February, told reporters in Tripoli earlier this week that he hoped to see Gaddafi tried first in Libya, then in the Hague. But NTC Oil and Finance Minister Ali Tarhouni, who has spent much of his life in the U.S. and who remains a senior lecturer at the University of Washington, told CNN on Tuesday, "What we offered, and are still offering, is that they surrender, they will be safe, they will be brought to court under international supervision, and that is basically the deal on table — take it or leave it."

Many Libyans would leave it, however, suspecting that an international tribunal may be softer on Gaddafi, and believing that after decades of suffering, Libyans deserve the right to punish the dictator as they see fit. "It is better for him to be tried in Libya because in the Hague they will show mercy on him," says Taher Belhaj, 59, a rebel supporter from the oil-refinery town of Zawiyah, in a phone interview with TIME. Even so, Belhaj says he realizes that Libya might be obliged to hand over Gaddafi to the ICC or risk alienating its international allies. "They have asked for him and so we have to hand them over," he says. But, he adds, "The rest of the Libyans just want to catch him and kill him."

Western human-rights groups fear that Libyans would like to see Gaddafi swiftly tried and hanged. That would not happen under the ICC, which has no provision for capital punishment and where trials can drag on for years. In addition, the ICC has not won a single conviction in the Dutch capital, and its most high-profile defendant, the Serbian President Slobodan Milosevic, died in detention before his five-year trial could be concluded. But Richard Dicker of Human Rights Watch says Libya's treatment of Gaddafi could be a crucial indicator of how it will handle future political dissidents in the future — with dignity, or rough justice. Dicker believes Iraqi justice was badly damaged by Saddam Hussein's trial in Baghdad; Saddam was hanged in December 2006 over what many Western countries believed was a deeply flawed trial; his gruesome execution amid a crowd of jeering Shi'ite gunmen captured on a mobile phone and aired on the Internet had proceeded despite U.S. calls for a delay. "For the Iraqi people and the people of the region, it was a judicial disaster that left behind no credible reference point," Dicker told TIME on Tuesday. And in Libya now, he says, "one has to draw a clear distinction between the desire for vengeance and the desire for justice."

Even some of Gaddafi's fiercest opponents in Libya oppose the ICC indictments. The charges were handed down in late June at the request of the U.N. Security Council, arguably binding all U.N. member states to transfer the men to the Hague if they are caught. U.N. officials argue that this obligation holds even for countries like Libya and the U.S., which are not signatories to the treaty establishing ICC. But the legal obligations of a new Libyan government remain a matter of debate. A U.N. Security Council resolution in February obliged "the Libyan authorities" to "cooperate fully with" efforts to prosecute Gaddafi at the ICC. But like Kenya has done recently, the TNC could petition the ICC for the right to try the Gaddafis and al-Senousi at home, if they could guarantee that a Libyan judicial system would meet international standards — an entirely hypothetical notion at this point.

Some observers saw the ICC indictment as presenting a problem even for the rebellion, arguing that it removed any incentive for Gaddafi to negotiate a peaceful transfer of power. "He has no motivation to capitulate, since that could result in him being sent to the Hague," wrote George Friedman, CEO of the private U.S. intelligence-analysis firm Strategic Forecasting, in July. Gaddafi made clear he would rather die on Libyan soil than end up as a prisoner in the Hague. Friedman says that for many dictators, "threatening them with a trial simply closes off political options to end the war. It also strips countries of their sovereign right to craft nonjudicial, political solutions to their national problems." Those arguments have become largely academic now, with the conflict being settled on the battlefield. Still, Gaddafi's fate remains in play, whether he's taken alive or flees into exile.