Thursday, October 20, 2011

The Killing of Qaddafi, War Crime

Al-Jazeera English has obtained video showing Qaddafi alive at the time of his capture. Qaddafi is clearly disoriented and bleeding from his head. Although this blog--and this Editor in particular--has been consistently supportive of the NTC and NATO's involvement in the Libyan revolution, that Qaddafi was killed shortly after strikes this Editor as a war crime. 

As Article 3 Common to the Geneva Conventions of 1949 states:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.

(emphasis added). Qaddafi was apparently killed after he was rendered hors de combat by both capture and, apparently, injury. That is murder--and likely a war crime. His body was then taken to Misurata and dragged through its streets. That is mutilation--and also likely a war crime. 

It is important to remember that this sort of conflict--a civil war--is exactly the type of conflict in the minds of the drafters when they wrote Common Article 3. It is important to remember it is triggered when there is an armed conflict in the territory of a High Contracting Party; it does not matter that the NTC is only a nascent government and not a well-established state, nor does it matter that the NTC was not the government of Libya when Libya ratified the Geneva Conventions. They are bound by it under the law of state succession. Moreover, the Geneva Conventions are jus cogens and would apply even if Libya weren't a High Contracting Party. 

UPDATE: A colleague points out that we do not know whether Qaddafi was killed after that footage or whether he succumb to his wounds. This is an excellent point. If he merely succumb to his wounds, then there was no murder. However, mutilation still stands.

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