Was Qaddafi's killing a war crime?

Posted By David Bosco Friday, October 21, 2011 - 1:07 PM Share

It now appears very likely that Moammar Qaddafi was killed at the hands of his captors. Human rights groups are calling for an inquiry and the International Criminal Court has reportedly asked to examine  the former leader's body (it's not at all clear that the Libyan authorities will acquiesce to that request). The question that is already arising is whether Qaddafi's killing constituted a war crime that could be investigated by the ICC. The answer, in short: Yes, it was likely a war crime; and no, the ICC is not likely to prosecute anyone for it.

First, the question of whether Qaddafi's execution constitutes a war crime that falls under the ICC's jurisdiction. To be a war crime, there's got to be a war (or state of armed conflict). Here, there's no doubt that there was an armed conflict underway when Qaddafi was killed. Does killing a combatant who has surrendered constitute a crime? Quite clearly. The ICC statute includes in its list of war crimes the following:

Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion...

What's more, the ICC's jurisdiction over crimes committed in Libya extends to the actions of the NTC and anti-Qaddafi fighters  just as it does to Qaddafi's own men. The Security Council referred the "situation" in Libya to the court, not the particular behavior of one party or another. 

But the fact that the ICC would have jurisdiction over Qaddafi's killing does not answer the question of whether it's likely to investigate. The court has no obligation to prosecute all or even most of the crimes that fall under its jurisdiction. In fact, the ICC's governing statute clearly guides the prosecutor away from isolated acts toward large-scale behavior:

The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes.  [my italics]

The choices of the prosecutor and the rulings of the ICC judges in recent years have made abundantly clear that the court prioritizes large-scale crimes that form part of a broad pattern or practice. Given that emphasis, it is unlikely the court will ultimately prosecute anyone for Qaddafi's killing unless they decide that there existed within the anti-Qaddafi forces a broad practice of war crimes or crimes against humanity and that the Qaddafi killing was a manifestation of that.

What's more, the new Libyan authorities could foil any ICC investigation by carrying out their own investigation. With  a national investigation underway, the ICC must yield unless it determines that the investigation is a sham. To the chagrin of many (mostly outside Libya, it seems), Qaddafi will never now see a courtroom in the Hague; neither will whoever killed him.

From the comments: Kevin Jon Heller, who knows as much about the ICC as anyone, believes an investigation into the killing is possible:

Although I share your skepticism that Gaddafi's executioner will ever face prosecution, I don't think the odds are quite as bad as you claim. Don't forget, although the Security Council's Darfur referral was directed at the actions of Bashir's government, not at rebel groups like JEM, Moreno-Ocampo nevertheless brought charges against rebel leaders for their alleged involvement in the murder of 12 Blue Helmets. That was an isolated act, yet Moreno-Ocampo had no hesitation in pursuing it. (And it's important to note, though it's implicit in your post, that the "plan or policy" element is not jurisdictional; it's little more than a suggestion.) Is it really inconceivable that Moreno-Ocampo would charge the murder of Gaddafi along with various crimes committed by the Gaddafi regime? After all, his rebelphilia is legendary...

EXPLORE:FLASH POINTS
 

EHRENS

2:04 PM ET

October 21, 2011

While we're on the subject of war crimes in Libya...

While we're on the subject of war crimes in Libya, what about that US drone attack which preceded Qaddafi's murder? A convoy was incinerated. Were any of the more than 50 people killed civilians? We'll never know either.

 

HURRICANEWARNING

2:17 PM ET

October 21, 2011

I am so sick and tired of

I am so sick and tired of people thousands of miles from "the business" complaining about war crimes this and war crimes that. If there is a war crime...you'll know it! It will look like Bosnia/ Uganda/ Rwanda/ Sudan etc.. When people die unjustly in a real war it is just called WAR. Get over yourselves. People die, it's unfair, and it's often inhumane. If you don't want to see it happen, then don't get involved, or simply turn away and don't look.

 

DAVID BOSCO

2:26 PM ET

October 21, 2011

This is wrong on so many

This is wrong on so many levels. War crimes often don't look at all like Bosnia/Uganda/Rwanda. There are isolated war crimes that occur in almost every conflict. How and whether these should be addressed is an open question. But it certainly seems reasonable to ask whether one of the most publicized killings of a leader in history constituted a war crime.

 

HURRICANEWARNING

7:50 PM ET

October 21, 2011

"This is wrong on so many

"This is wrong on so many levels. War crimes often don't look at all like Bosnia/Uganda/Rwanda. There are isolated war crimes that occur in almost every conflict."

-True, my argument was explained poorly, and you are correct that there are isolated war crimes occurring throughout the world. However, I do not think that it is prudent to cry war crime, or seek some sort of moral high-ground in a situation where a tyrant was shot in the head (executed), beaten etc. by the very people he abused for many years. There is no war crime no matter how bad it gets. This is my point. If G's killing constitutes a war crime, then we had better start investigating the millions of soldiers throughout history who have killed prisoners. WHO CARES? A war crime is a mai-lai massacre, or an Aushwitz. It is NOT the execution of a tyrant. Nor is it Abu Gharib. I think people should just be a bit more realistic in their views of warfare. It's never pretty. You can try to dress it up by enacting laws, and calling things "war crimes", but that really never does any good. Historically, the victor decides what constitutes a war crime anyway. Moral highground in war is elusive at best, and un-achievable at worst.

 

ZORRO

3:23 PM ET

October 22, 2011

Might is Right?

Sure we could accept that. And forget about justice, democracy and human rights while we're at it.

 

JIVATMANX

2:35 PM ET

October 21, 2011

If...

If Qaddafi's killing by a group of untrained rebels in the heat of battle was a war crime, than all the more was Bin Laden's killing by Navy Seals.

For the record, I wish Amnesty Int'l would spend more time fighting the Patriot Act than armchair quarterbacking on human rights for the tyrant who funded Idi Amin and Charles Taylor.

 

DOUG12

5:31 PM ET

October 21, 2011

Possible Investigations

Gaddafi didn't work alone in the fight against the insurgents. . If the Libyan leader was indicted for acts occurring during the insurgency, others performing those acts on behalf of the Libyan leader can be brought to trial. I agree that the killing of the Libyan leader may not be the highest priority. A prosecution for this killing could occur if the ICC wants to make this a model investigation as the Libyan intervention was to be a model for R2P. Groups in Tripoli are still armed and standing down may not be in their future. Local Libyan courts may not be up to the task of prosecuting people fairly.

 

CHRISSTEPHEN

9:39 AM ET

October 22, 2011

Chris Stephen, author, Judgement Day: The Trial of Slobodan Milo

Closer examination of the ICC statute shows that the court cannot proceed with a prosecution. The alleged crime needs to be part of a pattern, either systematic or widespread. A single act does not meet that threshold. End of.

 

KEVIN JON HELLER

1:33 PM ET

October 22, 2011

The ICC

David,

Although I share your skepticism that Gaddafi's executioner will ever face prosecution, I don't think the odds are quite as bad as you claim. Don't forget, although the Security Council's Darfur referral was directed at the actions of Bashir's government, not at rebel groups like JEM, Moreno-Ocampo nevertheless brought charges against rebel leaders for their alleged involvement in the murder of 12 Blue Helmets. That was an isolated act, yet Moreno-Ocampo had no hesitation in pursuing it. (And it's important to note, though it's implicit in your post, that the "plan or policy" element is not jurisdictional; it's little more than a suggestion.) Is it really inconceivable that Moreno-Ocampo would charge the murder of Gaddafi along with various crimes committed by the Gaddafi regime? After all, his rebelphilia is legendary...

 

MAIGARI

5:24 PM ET

October 23, 2011

Was the Killing of Ghaddafi a war crime?

War crime or not, the killing of ghaddafi certainly is wrong. Wrong because he could have been arraigned before a competent to defend himself and wrong becuase his killing will only compound a delicate situation in Libya. We must not loose sight of the fact there are no civil society istituitions in Libya, Ghaddafi was one and all, and the army that foght him was for the most part divided against itself; rtemeber the "sudden" killing of former Minister and general after he joined the rebels?
Moreover, most of the nations. particularly Western were more interested in Libyan oil and the subsequent contracts of rebuilding of destroyed infrastructure than any quaint idea of human rights.

 

STAN WRIGHT

1:24 AM ET

October 25, 2011

"No quarter!"

To split a hair or two, I do not believe that it is a war crime to kill a surrendering enemy. No soldier is obliged to accept the surrender of an enemy. The present-day equivalent of yelling "no quarter!" and continuing to shoot is perfectly legal. What is a war crime is killing an enemy who has been taken prisoner.

 

HALFORD

12:28 AM ET

November 20, 2011

If the Libyan leader was

If the Libyan leader was indicted for acts occurring during the insurgency, others performing those acts on behalf of the Libyan leader can be brought to trial. I agree that the killing of the Libyan leader may not be the pc geeks highest priority. A prosecution for this killing could occur if the ICC wants to make this a model investigation as the Libyan intervention was to be a model for R2P.

 

David Bosco reports on the new world order for The Multilateralist.

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