The transitional period in Libya has thus far been uncertain and contentious. Last week frustrated protestors stormed the Benghazi headquarters of the National Transitional Council (NTC) and NTC officials gave dubious public statements as to whether Saif al-Islam Gaddafi (Saif al-Islam) will be tried in Libya regarding the attacks on civilians during the February 2011 uprising.
On 23 January 2012, Justice Minister Ali Khalifa Ashur publicly announced that the International Criminal Court (ICC) had accepted that Saif al-Islam would be tried in Libya. On the same day, an ICC spokesman issued a statement clarifying that the ICC had not made a final decision on where Saif al-Islam would be tried. The ICC had given the NTC until 23 January to respond to questions about Saif al-Islam’s arrest. It appears Libya has how submitted a confidential response to the ICC but the NTC has not yet applied to challenge the admissibility of the case before the ICC. When such an application is received, the ICC judges will determine whether Libya is capable of conducting a fair trial of Saif al-Islam.
These developments need to be examined in context. It is necessary to reflect on the death of former Libyan dictator Muammar Gaddafi, and the circumstances in which this occurred, to understand what is happening at present.
In October 2011, images of Gaddafi’s final moments rapidly circulated worldwide. The world witnessed a bloodied and dishevelled Gaddafi paraded around Sirte by rebel fighters, and footage of his attempts to reason with his captors. Then, disjointedly, the images were flash-forwarded to rebels brandishing his infamous golden gun, and macabre images of his corpse on the floor of a commercial freezer. The precise circumstances in which Gaddafi met his demise remain conspicuously absent.
Upon any reasonable interpretation of such circumstances, is it any wonder that international law experts are querying whether Gaddafi died unlawfully? The United Nations (UN) High Commissioner for Human Rights called for an inquiry into the circumstances surrounding Gaddafi’s death. The ICC’s Chief Prosecutor, Luis Moreno-Ocampo, recently stated that in his opinion "the way in which Mr Gaddafi was killed creates suspicions of … war crimes".
Summary execution, otherwise referred to as extra-judicial killing, is unlawful in international law. Footage of an injured and incoherent Gaddafi pleading for mercy is strong circumstantial evidence that undermines any self-defence argument. Hence, the rebels stated that Gaddafi had been killed in crossfire (that is, as a result of the exigencies of armed conflict). Lo and behold, this is precisely the point at which the evidentiary gap arises in the chronology of events.
The word "justice" has been utilised as the noun de jour for Gaddafi’s death — as well as for the killing of Osama bin Laden in May 2011. "Justice" used in these contexts is misplaced and inappropriate; stemming from misconceptions as to fundamental meaning, or political motivations to propagate favourable messages about these events. A fundamental principle of international criminal justice is the application of law in the face of egregious violations and abuses. In neither instance had this occurred.
The conflict in Libya commenced as an internal conflict between the rebel forces and Gaddafi loyalists. After the UN, pursuant to Chapter VII of the UN Charter, issued Security Council Resolution 1973 and declared Libya a no-fly zone, the conflict transitioned to a hybrid internal and international conflict. If Gaddafi was an unarmed captive executed by the rebels; such an act would be in breach of the laws of war.
In international armed conflicts, provisions in the Geneva Conventions 1949 provide for humane treatment of combatants, civilians, prisoners of war, and the wounded and sick. In internal armed conflicts, Common Article 3 of the Geneva Conventions 1949 and Additional Protocol II 1977 provide similar protections. These treaties prohibit the use of violence, torture and murder of individuals not actively taking part in armed conflict. Libya is party to the Geneva Conventions 1949 and Additional Protocols II 1977.
Gaddafi had been subject to an outstanding arrest warrant issued by the ICC, alongside his son, and his brother-in-law and former intelligence chief, Abdullah al-Senussi. The UN had referred the Libyan conflict to the ICC through Security Council Resolution 1970 in February 2011, and issued a specific directive that "Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor". The ICC had issued an arrest warrant for Gaddafi on allegations of crimes against humanity perpetrated in the Libyan conflict, and had done so on the grounds of evidence deemed reasonable.
Gaddafi’s stance on non-cooperation with the ICC applied while he was in practical control of his sovereign state. However, the NTC was acting in de facto capacity during the revolt against Gaddafi. The uncertainty and doubt as to the nature of the NTC’s fledgling authority, and its role in Libya’s future, should be acknowledged. Geoffrey Robertson QC advocated for the prosecution of Gaddafi in the ICC and out of the hands of the NTC, described by Robertson as a "gimcrack organisation". The erroneous nature of the recent statements by NTC officials as to the ICC’s alleged agreement to Saif al-Islam being tried in Libya are a worrying indication that the NTC may preference national sovereignty, particularly in a case as high-profile as the trial of Gaddafi’s son, above all else.
Moreno-Ocampo’s statements about the trial being held in Libya are preconditioned on the proviso that Saif al-Islam be tried in accordance with ICC standards. There are still serious concerns as to the present capacity of the NTC to conduct a fair trial on home ground. On the facts of this matter, the normative position is one built on compromises — for the ICC to exercise jurisdiction, but to relocate the hearings from The Hague to Libya.
Gaddafi should have been tried in the ICC for crimes against humanity committed under his tyrannical tenure, and judged on fair, lawful and transparent terms. The legitimacy of means is crucial in the dispensation of justice after heinous crimes — at such times, it becomes even more important to ensure that law and reason are applied. Vigilantism and revenge detract from, disregard and erode hard-fought and evolved principles of fairness in international criminal law.
International criminal trials are expensive, time consuming and coordinated efforts but the easiest option to present itself is not necessarily the right path to take. Just as Gaddafi should have been put on trial, so should Saif al-Islam and Abdullah al-Senussi, and any future suspects alleged to have committed war crimes in relation to Gaddafi’s killing.
It is only when the charges against such individuals are tried and tested in an impartial and fair court of law, and principled and reason judgment meted out, will Libya have any hope of realising "justice" — in the truest sense of the word.
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