by Nadine Mansour on 28 Oct 2011 | Comments
Libyans rejoiced last Thursday upon hearing of the death of former Libyan leader, Muammar al Qaddafi, who was captured by National Transitional Council fighters in Sirte. This was seen as a victorious moment in the country he had ruled for 42 years and the interim government said it would officially declare Libya’s liberation on Sunday in the eastern city of Benghazi, where the revolution to oust him began in February. Under a United Nations Security Council resolution to protect Libyan civilians, NATO has been conducting aerial assaults on Colonel Qaddafi’s forces since March. These assaults are credited to have helped the rebel forces overthrow him.
As explicit footage of Qaddafi’s dead body was released as proof of his death, requests for an investigation were made by organizations such as Amnesty International, Human Rights Watch, and the U.N. Human Rights Watch has stated that the deliberate killing of a person in custody is a war crime that could be prosecuted by the International Criminal Court (ICC). Since then, the new Libyan authorities have been split on the issue, some seeing Qaddafi’s death as a just end, hoping to close the door on this chapter in Libyan history. Others, however, have expressed a desire to carry out an investigation. Mustafa Abdel-Jalil, head of the ruling National Transitional Council (NTC), said the NTC had set up a committee to examine the circumstances leading to the deaths of Qaddafi and his son Mutassim in Sirte, adding that Libyans would have preferred to see their deposed leader stand trial and be held accountable for his crimes. The missed opportunity to try Qaddafi through legal means at the ICC would have been advantageous to Libya’s transition for a number of reasons: First, handing over Qaddafi to the ICC would have improved the perception of legitimacy for Libya’s new leaders, in a period when the newly formed NTC remains fragile. Second, for the victims of Qaddafi’s regime, which was at times brutal and ruthless, a trial would have given voice to those victims, and revealed truths about the details of his crimes, which may now – in light of his extrajudicial killing – remain buried. Third, Qaddafi’s death most likely constitutes a war crime, and it is therefore the responsibility of the international community to see it dealt with as such.
Qaddafi’s Death in the realm of International Law
Putting aside Libya’s internal affairs for a moment, it is important to note that Qaddafi’s killing was seen by the international community as an extrajudicial act. Following a unanimous decision by the United Nations Security Council to refer Libya to the Prosecutor of the International Criminal Court, the ICC had issued an arrest warrant for Qaddafi as well as his son, Saif al Islam and the Director of Military Intelligence, Abdullah Al-Senussion. They have been indicted on charges of crimes against humanity such as the attack on unarmed civilians. The ICC is an independent, permanent criminal court mandated to investigate and prosecute persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes if national authorities with jurisdiction are unwilling or unable to do so.
The death of Qaddafi has prevented him from further imposing injustices upon his people, but it leaves the potential for his supporters to retaliate and the continuation of civil strife. Qaddafi’s crimes could have been accounted for by other means such as having the leader stand trial, either at the ICC, or locally as is being done in neighboring Egypt. Such trials are seen as being more conducive to post-revolutionary peace in that citizens stand a chance at material rewards and institutional changes, far more valuable than the ephemeral sense of victory tied to reprisal. In standing trial, Qaddafi could have revealed more sources and other culprits who could also stand trial and be removed from Libya’s future political arena. By utilizing institutions such as the ICC, greater transparency within Libyan politics is possible, and Libyan citizens can strengthen their own political and judicial institutions as they move beyond the current transitional phase. This would also set a system of accountability for future leaders, establish a precedent of seeking justice and finally, help fulfill the role for which ICC was formed.
The Reckoning: Battling for Justice in the Arab Spring
An IJCentral – Skylight Pictures Outreach Project
The Reckoning is a film produced by Skylight pictures dealing with the ICC’s role in bringing justice to violence-affected countries, such as Libya. It brings to light the purpose, processes, and progress that the ICC has made since its formation in 2002. A Middle East and North Africa (MENA) outreach program has been initiated to increase awareness about the ICC and hopefully to see the ICC recognized as a useful tool in dealing with national injustices in this region just as it has been useful for communities in Africa in the past.
Only 4 of the 22 Arab League states are presently states parties to the Rome Statute of the ICC. They are Comoros, Djibouti, Jordan, and Tunisia, which acceded on June 24, 2011 after the toppling of former president Ben Ali. Tunisia’s accession shows that there is practicality for MENA countries to take interest in what the ICC stands for. Skylight hopes to engage citizens in this region through an examination and discussion of the ICC and will be reaching out to them through a Facebook page and a Twitter account, which we hope will become an open forum for discussion on the ICC’s potential role to shape the region’s transition to democracy and justice.
As this outreach develops, I will be keeping a journal on IJCentral of our experiences working with the newly translated Arabic version of The Reckoning, relating what we learn along this journey about justice-seeking in the Middle East, and how Arab citizens are responding to the increased engagement of the ICC in the region. Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com
Follow the journey on Twitter for a @JustMiddleEast