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.