ICC to investigate NATO and NTC crimes in Libya

In his first address to the UN Security Council since Muammar Gaddafi was killed last month, ICC Chief Prosecutor Luis Moreno Ocampo said on Wednesday that the International Criminal Court will probe serious crimes committed during the Libyan civil war both by fighters loyal to Gaddafi as well as NATO and revolutionary forces.

According to Moreno Ocampo’s prepared remarks to the Security Council,

There are allegations of crimes committed by NATO forces, allegations of crimes committed by NTC-related forces, including the alleged detention of civilians suspected to be mercenaries and the alleged killing of detained combatants, as well as allegations of additional crimes committed by pro-Gaddafi forces. These allegations will be examined impartially and independently by the Office.

The Office was informed that the new Libyan authorities are in the process of preparing a comprehensive strategy to address crimes, including the circumstances surrounding the death of Muammar Gaddafi.    In accordance with the Rome Statute the International Criminal Court should not intervene if there are genuine national proceedings. Should the Libyan authorities decide to prosecute Saif al-Islam Gaddafi and Abdullah al Sanussi for the same crimes under investigation by the International Criminal Court, they should submit an admissibility challenge and it will be for the ICC Judges to decide.

He did not provide details of possible crimes by NATO forces but said his office will examine all allegations “impartially and independently.”

In the final weeks of the war, the Gaddafi regime alleged that 85 civilians were killed in a NATO air strike near town of Ziltan. General Khaled Hemidi filed a lawsuit in a Belgian civil court against NATO for killing his wife and three children in a June airstrike near the town of Surman.

The announcement that ICC would be investigating possible NATO crimes may have come as a surprise to the Security Council, which referred the case of Libya to the ICC on  February 26, 2011 in Resolution 1970. The U.S. State Department has referred to Resolution 1970 as “a comprehensive resolution to respond to the outrageous violence perpetrated by Muammar Qadafi on the Libyan people.”

The language of the resolution, however, does not specify that the Court’s mandate is limited to investigating violence perpetrated by Gaddafi, instead generally “condemning the violence and use of force against civilians.”

Regarding its referral of the situation in Libya since February 15, 2011 to the ICC, the Council recognized that States not party to the Rome Statute that established the Court had no obligations to it, but urged all governments to cooperate fully with the Court’s prosecutor.

When Moreno Ocampo, announced on May 16 that he would seek an arrest warrant for Muammar Gaddafi, the U.S./NATO alliance intensified its bombing campaign against the beleaguered North African nation.

As CNN reported,

Crowds in Tripoli gathered Tuesday morning outside two burning buildings, the aftermath of what a Libyan official said were NATO airstrikes on government facilities. Spokesman Musa Ibrahim said the buildings housed the Ministry of Popular Inspection and Oversight – a government anti-corruption body – and the head of the police force in Tripoli.

“Is this NATO’s protection of civilians or terrifying civilians,” a Gaddafi loyalist asked CNN reporters. “This is a civilian neighborhood. … Residents are terrified.”

Ironically, NATO leaders used the ICC’s arrest warrant against Gaddafi as a sort of tacit authorization for NATO to intensify its bombing campaign in the country.

The Christian Science Monitor reported on May 17, “The potential that the International Criminal Court (ICC) could issue an arrest warrant for Libyan leader Muammar Qaddafi … could give NATO more latitude to target the dictator directly.”

“So far,” the Monitor reported,

NATO airstrikes have focused on military targets – this morning they hit two government buildings in Tripoli, including the Interior Ministry. However, the head of Britain‘s military said on Sunday that NATO needed authorization to also strike infrastructure targets. There is speculation that the ICC warrants could justify NATO efforts to target Qaddafi, rather than simply to “protect Libyan civilians under threat of attack.”

Now that Gaddafi has been killed an apparent extrajudicial execution, the ICC is preparing “to withdraw the warrant against Muammar Gaddafi and to end the case against him,” according to Moreno Ocampo. But to the ICC’s credit, the investigation is still open into other war crimes that may have been committed by NATO and its allies in the Libyan National Transitional Council.