Killing the killers makes a mockery of international justice
- Date: October 26, 2011
- Category: Opinion
Another dead tyrant, and more solemnly expressed glee from our leaders. It has become something of a theme in recent times to seek out and murder our enemies rather than resort to the expensive and complex process of trying them for their crimes of atrocity in a court of law.
One can easily understand why members of the Libyan National Transitional Council, subjected to Muammar Gaddafi’s brutal reign for so long and forced into a protracted bloody battle with his forces, have beaten and possibly executed him upon capture. The facts are hazy and the stories conflicting over Gaddafi’s last moments, although the most likely account of events have him dragged out of a drain by rebel fighters, beaten and then shot to death. The story of him taking a bullet to the head in crossfire as he was being driven to hospital, while possible, seems to conflict with the unfolding events and commentary from people present at the time of his capture.
If it is understandable that Libya’s rebel forces would choose to exact a more primal vengeance on Gaddafi, it would surely have been preferable were he arrested and tried in a court of law for crimes against humanity and war crimes. It is not so long ago that the rule of law stood as the international community’s weapon in the response to regimes committing mass atrocity. By setting up war crimes tribunals for the former Yugoslavia and Rwanda, tribunals in East Timor, Sierra Leone and Cambodia, and the permanent International Criminal Court, the United Nations Security Council reflected a profound commitment to a judicial response to the gravest of international crimes.
The recent targeted assassinations by the US of Osama bin Laden in Pakistan and Anwar al-Awlaki in Yemen appear to signal a disturbing shift in policy towards a preference for the summary killing of our enemies. Bin Laden at least could have been captured and put on trial, and it is now clear that the intention of Operation Neptune Spear was always to execute him.
While these are obvious examples, the NATO campaign against Gaddafi and his forces also seemed to take a turn in the direction of targeting Gaddafi and his family directly. While given a mandate by the Security Council strictly limited to the creation of a no-fly zone and to protect civilians and the civilian population of Libya from Gaddafi’s military and security forces, NATO focused its efforts and bombs on the leader’s residences in Tripoli, killing several members of his family. The clear aim of the attack was to kill Gaddafi himself, well outside the Security Council’s authorised use of force.
Although the point has hardly been made, these actions by NATO states involved in the bombings are a gross violation of the authority and trust placed in them by the Security Council, and they are blatantly unlawful. That said, one can be certain they will neither be investigated nor prosecuted.
It is disturbing that Barack Obama, a President who came to power swearing to dismantle the maligned Guantanamo Bay project and restore America’s moral standing in the world, has overseen such a cynical policy of extrajudicial killing against enemies of the US. The damage to the rule of law, as to the delicate framework of international justice, will be significant, and it does nothing to restore America’s moral standing. It is difficult to see how such a policy is morally defensible. It is certainly unjustifiable under law.
This spate of targeted killings comes at an interesting time in the response by the international community to certain pariah states and their despotic leaders. The Security Council mandated use of force in Libya is the first time that the Responsibility to Protect doctrine has been operationalised.
It should have been a positive defining moment in the international community’s preparedness to take affirmative action to protect oppressed and persecuted peoples from the murderous tyranny of their own leaders. Instead, attempts by NATO to kill Gaddafi themselves, and his eventual killing on Friday in Sirte, send confused and dangerous messages. Having just months earlier charged the International Criminal Court with the job of prosecuting Gaddafi and members of his regime for international crimes, NATO has made the Court look foolish and impotent by targeting him. Their actions suggest that the international community’s commitment to international justice may be waning.
It is hardly surprising that the Libyan rebels chose to kill Gaddafi rather than offer him up for trial, given the model played out internationally by their allies and benefactors. If our leaders wish to condemn despotic murderers and press a case for international justice, then the unlawful and unsanctioned murder of its enemies must cease.
Dr Gideon Boas is an Associate Professor in the Monash University Law School and a former senior legal officer at the International Criminal Tribunal for the former Yugoslavia.
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