The single most important organizing principle of the law of armed conflict is the principle of distinction, which is commonly understood to permit the use of force against combatants and prohibit the use of force against civilians. As the head of Libya's armed forces during an armed conflict, Muammar Gaddafi was certainly a legitimate military target. But once disarmed and taken into custody, combatants, whether they are foot soldiers or commanders-in-chief, are entitled to the same protection as civilians against targeting and ill treatment. Due to this, the circumstances of Gaddafi's death appear to suggest that he was murdered.
The UN Security Council had already referred the situation in Libya to the International Criminal Court (ICC). Had Gaddafi survived, he could have found himself answering charges of war crimes and crimes against humanity in The Hague, providing a powerful object lesson on the reach of international justice. Libya could have also offered to constitute its own trial for Gaddafi in accordance with international standards of due process, permitting the ICC to stand down. That would have been an equally powerful object lesson on the complementary relationship between international and domestic judicial processes for international crimes. Either way, a deliberate and credible trial would have been the venue for truth and accountability and perhaps even reconciliation among competing interests.
Instead, what we appear to have gotten is hot-blooded retribution. The National Transitional Council (NTC) had one chance to bring Gaddafi to justice, and they blew it.
In death, Gaddafi has inflicted a well-deserved wound on the NTC, fueling international unease about its willingness and ability to comply with international human rights and humanitarian law rules and principles. One might be tempted to respond that Gaddafi's murder, if that is what it was, is unfortunate but in war stuff happens. It is precisely because stuff happens in war that parties to armed conflict must take the measures necessary to assure that their fighters understand the rules and what can happen when they disobey them. Did the NTC command take measures to inform its fighters that Gaddafi should not be harmed if captured alive? That to do otherwise would constitute a war crime for which they would be held accountable? These and other questions surrounding the Gaddafi's death should be the subject of investigation. If violations of the laws of war are found, including by commanders, those responsible should be held accountable through a legitimate judicial process. The NTC should commit itself to such a process not only because it is the right and legal thing to do, but also as a matter of self-interest in order to begin the process of establishing its bona fides as a responsible, rights-respecting member of the international community that enforces Libya's treaty obligations.
As an American, I would also like to register regret that the President of the United States saw fit to address the nation upon Gaddafi's death in terms that can be construed, at best, as neutral on the manner of Gaddafi's demise. As a party to the Libyan armed conflict, the US bears a special responsibility under the laws of war not only to respect the rules, but to ensure that they are respected. President Obama's failure to note that Gaddafi's death was likely a war crime, and to call for investigation and accountability, is more than a missed opportunity to affirm the rule of law in war. It is a missed opportunity to affirm what the US stands for.
Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.
Suggested citation: Gabor Rona, Gaddafi's Death Highlights Missed Opportunities All Around, JURIST - Hotline, Oct. 28, 2011, http://jurist.org/hotline/2011/10/gabor-rona-gaddafi-death.php.
This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org