Although the facts are far from clear, most reports now seem to confirm that Muammar Gaddafi was killed after his convoy was attacked by NATO planes, including aircraft from the US and France, and after he was captured alive. If these facts are correct, they point to yet another serious violation of international law involving the US.
The willful killing or summary execution of a prisoner of war who is no longer participating in an armed conflict is a grave breach of the Third Geneva Convention on Prisoners of War of 1949, to which both France and the US are parties. It makes no difference how much one dislikes the particular prisoner of war. The resulting obligation for all parties to this treaty is that they investigate, arrest and punish the perpetrators of such crimes.
Of course, the Third Geneva Convention applies mainly during international armed conflicts. The armed conflict in Libya, however, had undoubtedly become international once NATO intervened. It makes no difference in this classification that the intervention was based on a UN Security Council resolution. Indeed, international humanitarian law applies to any international armed conflict, even an illegal one. If one of the domestic parties to a non-international armed conflict becomes an ally of a foreign power and commences fighting against its own people as NATO-led rebels, these rebels could be under enough control from foreign powers so as to make the foreign powers responsible for their acts.
There is evidence that this was the case when Gaddafi was killed. More would have to be known, but the mere fact that Gaddafi's convoy was first attacked by foreign air power and then by ground forces that, according to some reports, included foreign troops is quite telling evidence. Moreover, if as it looks, Gaddafi was fleeing Sirte, it would appear that he was attacked not as a threat to any civilians in Libya, the remit of the use of force provided by the UN Security Council resolution, but either as part of an indiscriminate attack or one aimed at killing people fleeing from an armed conflict. In either case, it would be a use of force against the political independence and territorial integrity of Libya, especially given the fact that the NATO-led rebels had expressly stated they do not form a new government of Libya. Such an attack, as had been going on for months, constitutes the crime of aggression. Such an attack, outside the remit of the mandate of the UN Security Council, which itself is bound by international law, also constitutes a serious violation of one of the most fundamental principles of international law prohibiting the use of force.
International human rights law applies as well. This law applies during wartime or peacetime. It imposes a higher standard than in an armed conflict, limiting lawful force to what is absolutely necessary to achieve a lawful goal. In this case, the use of air power and then anti-aircraft guns on land-based persons a trademark of the NATO-led rebels throughout the armed conflict would very likely constitute excessive force in violation of the right to life. In any event, the summary execution of a prisoner would clearly violate the right to life.
If the rule of international law were respected, the offending states would be required to return the situation to that which existed before their violation began, which is impossible now that Gaddafi has been killed. In killing Gaddafi, the US may have won short term bragging rights as victor in a minor battle against yet another disabled foe, but in the long term the US may have further damaged its global relationships and influence.
Under international law, other states may seek to use the US or another NATO country's international law violations as justification for their internationally wrongful acts. While international law does put limits on the unlawful acts that other states may take in response to the US violation of international law, there are no limits on lawful action that may be taken, such as steps to devalue the US currency, boycotting American products or merely starting to treat Americans as untrustworthy partners in the international community, any of which could have lasting negative consequences for Americans.
Months of acts of aggression culminating in an extrajudicial execution sends a message to other countries, and even non-state actors, who find the US or any of its NATO allies to be a foe is that one must kill or be killed. This is the rule of the jungle, not of international law. Perhaps by his death, Muammar Gaddafi will ultimately haunt his foes longer than he ever could in life. His foes will only have themselves to blame.
Curtis Doebbler is an international lawyer with an office in Washington DC, a professor at Webster University and the Geneva School of Diplomacy and International Relations, both located in Geneva, Switzerland, and the representative of Nord-Sud XXI at the UN in New York and Geneva.
Suggested citation: Curtis Doebbler, The Rule of Law and the Extrajudicial Killing of Muammar Gaddafi, JURIST - Forum, Oct. 24, 2011, http://jurist.org/forum/2011/10/curtis-doebbler-gaddafi-killing.php.
This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org