Sharon Hofisi Legal Letters
Libya under Colonel Muammar Gaddafi and in the post-Gaddafi period is fast descending into a war-front. The international community failed to establish a tribunal to combat impunity in Libya. Such a tribunal should have been an international one considering that the Libyan conflict of 2011 started as a national armed conflict that gradually evolved into an international armed conflict.

Notwithstanding that failure, the post-Gaddafi period is now five years into ethnic conflict which is again becoming internationalised.

There is no sight of a war tribunal to deal with the current violators of IHL in Libya, the situation that prevailed in Libya in 2011 is no different from what is obtaining in Libya today. Targeted killings still supplant the need for legal justice today as was the case during the 2011 civil war. In this light, the principles of international humanitarian law (IHL) have to be applied.

IHL, the law of war, is and has always been a war behind. Millions of civilians have died. Conventions such as the Geneva and Hague were reactive.

There is no IHL tribunal.

The International Criminal Court (ICC) is ‘the court’ that deals with violations of IHL principles such as the principle of distinction.

Resultantly, criminal law principles end up being smuggled into what should be “IHL” legal proceedings.

Many of the more antiquated IHL principles as contained in the Geneva Conventions are curiously silent when it comes to the laws governing the actions as amounting to IHL violations.

These include the Geneva Convention on the amelioration of the Wounded and Sick in Armed Forces in the Field, Convention relative to the Treatment of Prisoners of War and Convention relative to the Protection of Civilian Persons in Time of War.

These Conventions came into effect in 1949, a year after the Universal declaration of Human Rights.

All too often these laws provide legal cover for a wide range of IHL violations targeting civilians, including actions committed by both state and non-state actors.

Libya had not domesticated the Conventions and as such there were no extraordinary measures that could be taken at a national level to protect the violation of civilian rights.

There was very little, if no protection of civilians against abuses of State power by both the pro-Gaddafi forces and the rebels. What may need to be assessed is the violation of the IHL principles.

For instance, Colonel Gaddafi’s death increased the targeted killings.

Rebels captured him and he was supposed to be tried either in Libya or handed over to the ICC.

Referring Gaddafi to the ICC made a lot of international law sense since he had been indicted by the same court.

Alternatively, prosecuting Gaddafi in Libyan Courts would have ensured a proper assessment of the veracity of the violations on his part.

Cumulatively, the jurisprudence on IHL would have been enriched since the late Colonel would have had the opportunity to defend himself.

The end result was that he would have been held accountable for crimes against humanity or acquitted after a fair trial.

The spirit of the Rome Statute establishing the ICC would also have been upheld since the Statute places importance to the principle of complementarity.

Put simply, complementarity envisages a situation where the ICC handles certain cases in light of developments within municipal legal systems.

It can do so in situations where a State is unwilling or is unable to conduct a trial for someone accused of violating IHL principles.

The subsequent demise of Gaddafi can be understood in light of the following phases in the development the civil war: The protest phase in February 2011; the armed conflict phase, and the post-Gaddafi phase after November 2011.

The warring parties or their supporters included the pro-Gaddafi forces; armed groups, the African Union (AU), and NATO forces.

The overarching question in all this is, “Did the belligerent groups, particularly the pro-Gaddafi and anti-Gaddafi fighters, attack civilians through their weapons or through attacks on non-military sites that housed civilians?”

The first corollary to this question is to interrogate NATO’s failure to fully investigate and account for its air strikes.

The second corollary is to question the United Nations Security Council (UNSC) reluctance to ensure that accountability measures existed ion the part of all the belligerent actors.

The answer to the first question is that there were several IHL violations attributable to both parties.

These include the use of excessive force on protesters; unlawful killings; arbitrary detentions and enforced disappearances; torture and other forms of ill-treatment; denial of access to medical treatment.

The conflict phase was characterised by continued restrictions on the freedom of expression; attacks against civilians and civilian objects, protected persons and objects; prohibited use of weapons; the recruitment of mercenaries; sexual violence; and the use of children in armed conflict.

The UNSC then passed Resolution 1973 which created a legal framework for the humanitarian intervention and authorisation of a No-fly zone in Libya.

This resolution was made pursuant to Resolution 1970 which called for restraint and reporting to the International Criminal Court for any human rights violations.

What was striking though was the fact that NATO’s air strikes were carried out under the colour of the UNSC.

This was notwithstanding the fact that the Resolution inter alia: Confusingly allowed “all necessary measures” to “protect civilians and civilian populated areas under threat of attack”; and excluded a foreign occupation force of any form of any part of Libyan territory.

The post-Gaddafi conflict is even the worst case scenario.

There is battle for control of Libya between Fajr Libya, or “Libya Dawn” which controls Tripoli and the internationally recognized Tobruk government. The Libyan is gradually being internationalised.

IHL is failing to urgently deal with the dominance of Daesh or the “Islamic State” or IS and thousands of civilian lives are being lost. The conflict is largely ethnic-centred.

The conflict that was Libya under Gaddafi and the conflict after Gaddafi poses problems to IHL because of the complex nature of the warring parties.

Both conflicts also show the characteristics of national armed conflicts and international armed conflicts.

An International Libyan Tribunal was not established to wholesomely deal with both national and international actors who violated IHL principles in Libya.

A domestic IHL tribunal is not in sight to deal with the IHL violations in the current conflict.

Thousands of lives are lost. Another Rwanda is slowly being witnessed in Libya. Yet, IHL, remains a war behind!

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