How to assure a fair trial for the captured son of a hated dictator? For millions of Libyans, an immediate bullet would be all the justice Saif Al Islam Qaddafi deserves; as the most prominent of the children of Muammar Qaddafi he was, it is widely believed, deeply complcit in many grave crimes.
Qaddafi himself was killed shortly after capture, a death that may well qualify as murder. Terrible things happen in wartime.
But what should happen now, after relative peace has taken hold in Libya? The tribal militiamen holding Saif Al Islam say they will not hand him over to the new government until its legal system is functioning.
That government, set up by the National Transitional Council, naturally wants a national trial, and so far there is every reason to believe it will be capable of providing full due process, up to international standards. Clearly, NTC leaders understand that vigilante "justice" would be wrong, on more than one level, at the start of a new era for the country.
The International Criminal Court, which has sent confusing signals, now claims jurisdiction over Saif Al Islam and another captive, the old regime's intelligence boss Abdullah Senussi. In this the ICC reveals how badly its zeal for abstract global law has outweighed its common sense.
Qaddafi's Libya never signed the Rome Statute of 1998 which set up the ICC. But that body, which first seemed to disclaim jurisdiction over Saif Al Islam, has now asserted that "the Libyan obligation to fully cooperate with the Court remains in force." (This would be a pity, because the ICC's ability to convict the patently guilty is open to question: nine years after it opened for business, it has never delivered a conviction.)
The ICC bases its claim to jurisdiction on Security Council Resolution 1970 of last February, which imposed sanctions on Qaddafi's regime. In its fine print, 1970 required that "the Libyan authorities shall cooperate fully" with the ICC. But there is an obvious absurdity in trying to impose on the new government a requirement that the old one blithely ignored.
Requiring ICC cooperation may have made sense when there was no legitimate government in Libya, but now the new regime is increasingly solid. The Security Council should now amend resolution 1970 to leave jurisdiction over Saif Al Islam to Libya, and should then provide any necessary technical help to make sure that his trial is fair and transparent.