The ICC prosecutor may ask the Dutch forensic authorities to help verify Gaddafi's death
Comments (20)
Alison Cole
guardian.co.uk, Friday 21 October 2011 12.10 BST
Article history
ICC prosecutor Luis Moreno-Ocampo could ask the Dutch forensic authorities to confirm Gaddafi's remains Photograph: Peter Dejong/ASSOCIATED PRESS
Now it's been confirmed that Colonel Muammar Gaddafi has been killed, the case against him at the international criminal court (ICC) is over. But there are still legal steps to be taken.
How can Gaddafi's death be confirmed for the purposes of the ICC proceedings?
The ICC has previously faced circumstances where an indicted suspect died before arrest.
In the Uganda situation, Raska Lukwiya was indicted by the ICC on charges pertaining to atrocities in the Northern Uganda committed by the Lords Resistance Army (LRA). He was killed during battle with Ugandan government forces. Both the ICC prosecutor and the Ugandan government requested assistance from the Netherlands Forensic Institute of the Dutch Ministry of Justice to submit a forensic report confirming the human remains, as the person subject to the ICC arrest warrant. The Ugandan government cooperated in providing Lukwiya's death certificate. The judges found that "the purpose of criminal proceedings is to determine criminal responsibility and that the Chamber cannot exercise jurisdiction over a person who has deceased". Importantly, the judges noted that protective measures for witnesses and victims continue regardless of whether proceedings have been terminated.
Following this precedent, we can anticipate that the ICC prosecutor could repeat the same request to the Dutch forensic authorities.
Will the Libyan government do the same?
This begs the question: who is the Libyan government? The cooperation of the Libyan authorities is essential for securing access to Gaddafi's remains for forensic testing.
What happens if there is no cooperation and it is not possible to forensically verify the death of Gaddafi?
Again there may be some guidance from another case from the Ugandan situation. It is fairly commonly accepted that another ICC suspect, Vincent Otti, was killed by the leader of the LRA, Joseph Kony in 2007. However, unlike in the Lukiwya case, he is said to have died at an unknown location such that there was no access to his remains. As a result, there was no scope for cooperation in the collection of forensic evidence. For the Otti case, there is no publically available information of any pre-trial proceedings at the ICC similar to those in the Lukwiya case which officially confirmed Lukwiya's death and closed proceedings. As a result, Otti is still listed as "at large" on the ICC website.
Could this be replicated in Gaddafi's case?
It would be difficult to imagine that the ICC would persist with investigations in the face of official assertions, albeit without forensic verification by the Court, that Gaddafi has indeed died.
Although the death of Gaddafi ends the proceedings at the ICC, there are still two fugitives as a result of the ICC investigations into the events in Libya who must be arrested and transferred to The Hague. The question facing the ICC now is: where are Saif Al-Islam Gaddafi and Abdullah Al-Senussi.
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Comments in chronological order (Total 20 comments)
monkey2
21 October 2011 12:22PM
Bush? Blair? Israel? Anyone other than an African despot? There is plenty of work the ICC could be getting on with
Youdonewrong
21 October 2011 12:26PM
The "Queen"
MayaWolfeRobinson
21 October 2011 12:28PM
Hi monkey2, sure, you've made your point that you think the ICC should be prosecuting others, but surely it is still a valid point to ask what happens if an indicted suspect dies before arrest?
monkey2
21 October 2011 1:12PM
@Maya
Fair enough. It may simply be that I have absolutely no respect for the ICC as an "independent" and "international" court. But you are right, that is probably a discussion that can take place another day.
I do wonder whether the ICC will look into the circumstances surrounding Gadaffi's death (it does look like he was summarily executed after having surrendered) and bring charges against anyone in the Libyan rebel forces who transgressed international law. I'd doubt it.
twincam
21 October 2011 1:37PM
So the west is not going to meddle in post gaddafi Libya, but starts off by interfering in a funeral rite.
Cool.
Apparently, everyone is equal under the law, so either investigate every death in the conflict, or none.
You could argue that.
They need proof hes dead ? Ask one of the blokes in the video which one shot him, then e-mail him.
O...they need forensic proof.....then in the e-mail, ask the bloke in the video to send over the blood stained shirt.
God,,, this will save millions and please the Greeks !
I mean,, come on ,,,bureaucratic nightmare......save the trees ! global warming and all that
Is gaddafi dead...yes
Was he killed by the blokes who captured him....yes
should they investigate....no...hes dead, and various fractions will probably try and blame each-other, thus casing more harm than good.
Now can we stop watching CSI miami
rubberneck
21 October 2011 2:20PM
Will Tony blair be attending the funeral ??
twincam
21 October 2011 2:38PM
@rubberneck
Will Tony blair be attending the funeral ?
Yes, apparently hes digging the grave,They had a shortage of labour.......mind you,,,we did for over a decade !
AlisonCole
21 October 2011 2:42PM
@Monkey2
I do wonder whether the ICC will look into the circumstances surrounding Gadaffi's death
When the death of an accused takes place whilst in custody at an international court, the court has jurisdiction to investigate the circumstances of the death. This took place when the former Serb President Slobodan Milosevic died in detention at the International Criminal Tribunal for the Former Yugoslavia. The Khmer Rouge Court, shortly due to commence a joint trial against four elderly accused, also has procedures for the court to investigate deaths in custody.
Since Gaddafi was not in ICC custody, the court does not automatically have jurisdiction to examine the circumstances surrounding his death as a procedural matter.
However, as a matter of substantive law, Gaddafi's death took place during the conflict over which the ICC has jurisdiction through the Security Council Resolution 1970. The prosecutor has said that he would be looking into two aspects: firstly the alleged crimes within the initial weeks of the conflict, and secondly, the continuing crimes after February.
Since the killing of Gaddafi was not part of an attack against civilians because he was a member of the forces in conflict with the Transitional National Council, it is not possible to consider is death within the context of crimes against humanity. The most relevant area of international criminal law would therefore be war crimes under Article 8 of the ICC Rome Statue. For both international and non-international armed conflicts (depending on whether the judges would find that the air strikes internationalizes the conflict), a person taking part in hostilities is generally not protected under international law.
MayaWolfeRobinson
21 October 2011 2:50PM
@monkey2
Thanks for your reply. There is an ongoing debate to be had about the court and investigations it has/hasn't pursued and to what extent but let's see what the next prosecutor does. (Did you see this piece we ran last month on the recruitment process? Leading candidate seems to be Fatou Bensouda, so will be interesting to see if same criticisms are levelled re African states under African prosecutor.) But yes, conversation for another day.
ANYWAY, in response to whether the ICC will look into the circumstances surrounding Gadaffi's death, I don't think it's a job for them. Have a look at this:
On Friday, a spokesman for the UN high commissioner for human rights in Geneva said the shakily filmed mobile phone footage showing Gaddafi captured and alive but wounded, and then subsequently dead, was "very disturbing".
Rupert Colville said an existing UN panel investigating human rights abuses in Libya would probably examine Gaddafi's death.
MayaWolfeRobinson
21 October 2011 2:51PM
Ah there we go, @AlisonCole has already answered your question in a much more informed way than I have!
AldoZammitBorda
21 October 2011 5:00PM
@AlisonCole
"...a person taking part in hostilities is generally not protected under international law."
The above statement deserves qualification.
It is true that one of the basic tenents of International Huamnitarian Law (IHL) is that of 'distinction,' which differentiates between those actively taking part in hostilites and others, such as civilians and prisoners of war who are not actively taking part in hostilities.
However, IHL is also premised on the principles of 'proportionality,' 'necessity' and 'humanity,' and these principles would operate to protect even those actively taking part in hostilities, such as by prohibiting certain methods of warfare or by restricting the use of certain weapons which may be deemed to be excessively injurious. The statement that "a person taking part in hostilities is generally not protected under international law," is thus not a srictly correct statement of the law.
Moreover, as these comments relate to "Gaddafi's death," video footage appears to show that he was captured alive and detained as a prisoner of war, before being killed (somehow) in the hands of the NTC fighters. IHL is clear and unequivocal on the duties of protection owed to civilians, prisoners of war and persons rendered hors de combat. If, as some reports seem to indiacte, he was summarily executed by NTC fighters, this may amount to a serious and punishable breach of IHL.
monkey2
21 October 2011 5:19PM
@Maya and Alison
Thank you for your responses.
Alison, thank you for setting out the law in detail. You have done so before when I have previously raised my main issue with the ICC, in this previous thread.
Maya, sorry again the derail this thread but I think the Guardian at some point needs to deal with this salient issue head on, as it goes to the heart of our global legal hegemony. I have attempted to on my blog but I am no expert in the workings of the ICC, being just a domestic lawyer.
MayaWolfeRobinson
21 October 2011 5:46PM
@monkey2
Thanks for link to your blog, I'll check it out as soon as I get a chance. Think it's fair to say The Guardian has engaged with criticisms of the ICC in the past - did you read this recent piece when HRW's report on the ICC came out? It called for the court to bring additional cases and makes interesting reading. Or this piece which looks at a book entitled "The International Criminal Court: Europe's Guantanamo Bay?" Or this piece that looks at whether there's a case for bring Tony Blair before the court. And there are more.
AlisonCole
21 October 2011 5:48PM
@AldoZammitBorda:
IHL is clear and unequivocal on the duties of protection owed to civilians, prisoners of war and persons rendered hors de combat. If, as some reports seem to indiacte, he was summarily executed by NTC fighters, this may amount to a serious and punishable breach of IHL.
Thank you for providing this additional information. This is indeed what I had in mind what I used the term "generally" to point out that combatants in most circumstances are not protected from killing under international law during armed hostilities.
At this point in the analysis, the conclusion regarding the legality of Gaddafi's killing will depend entirely on the facts, as you point out.
For the ICC purposes, given that the investigation in Libya is on-going, for the prosecutor to seek an arrest warrant or a summons to appear on the basis of any factual allegation, the burden of proof is to show "reasonable grounds to believe" that a crime has been committed (Article 58 of the ICC Rome Statute).
However, the prosecutor can also decide not to move forward with the investigation should there not be a sufficient factual or legal basis, but also if prosecution is "not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims [...]" (Article 53 of the ICC Rome Statute).
monkey2
21 October 2011 5:53PM
Maya
Thank you for those links. Surprised I missed them.
btw, the last post was not a plug
AldoZammitBorda
21 October 2011 6:17PM
@AlisonCole
Agreed.
I found the article informative, particularly the precedents therein.
Fatheek
22 October 2011 8:14PM
Appreciate the precedents discussed.
would consequences of the prosecution be considered if the ICC chooses to replicate the case?
Spedding
24 October 2011 9:56AM
Whatever the legal theory, the most the ICC will get is some form of statement as to how Gaddafi met his death and that will close the case.
Also, one suspects that there will not be any action taken against supporters of the Transitional Council. There remains an element of "victor's justice" where these international courts are concerned.
billj
26 October 2011 7:04AM
Are leaders of defeated regimes and rebel armies the only individuals entitled to investigation by the ICC? It seems that if a person was known to the world at large and in particular to those who pay for the setting up and day to day cost of running international tribunals then he [and it is usually "he"] is entitled to benefit from their existence and not suffer the fate of so many of those who crossed them whilst they held the reins of power.
Yet possibly hundreds of lesser known supporters of Colonel Gaddafi have been summarily executed with no prospect of their families finding out what happened to them through the offices of the ICC or other ad hoc forum set up for that purpose.
johnsexton
28 October 2011 10:47AM
Ridiculous article that illustrates the farcical nature of the ICC, NATO's bought-and-paid-for court. If the ICC wants to shed its dreadful reputation by the way, its next step should be simple. Prosecute those among the Libyan rebels responsible for racist killings of black people and the summary execution of prisoners - including of course Gaddafi. I don't advise anyone to hold their breath.
By the way, why does one Guardian journalist require another to back her up in this forum? Surely they should have better things to do.
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Bài viết trên đây đã được lên Internet vào ngày 21-10-2011, chỉ 1 ngày sau khi độc tài Gadhafi bị giết sau khi bị lôi ra từ một ống cống, mà nhiều người đã nhận xét rằng Gadhafi đã kết thúc thời đại "đế vương" suốt 42 năm cầm quyền một cách thê thảm nếu không muốn nói là Ô NHỤC .
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