JURIST Contributing Editor Laurie Blank of Emory University School of Law says that two great works of literature highlight the ancient pedigree of the law of war principles violated in the death of Muammar Gaddafi (if killed after capture) and the treatment of his remains by Libyan rebels...
f reports of Muammar Gaddafi's death
are accurate, then we saw several violations of the law of armed conflict on Friday. News reports stated that Gaddafi was found in a drainpipe after an attack on his convoy as it fled from Sirte, his hometown. At present, it is unclear if he was then killed in the course of a gunfight or if he was killed once in the hands of his captors. What then appears certain is that his body was stripped to the waist and dragged through the streets.
The application of the law of armed conflict is straightforward here. First, Gaddafi was a legitimate target the commander of what remained of the Libyan army. If he died in the course of active hostilities, then, barring the use of illegal weapons, the killing was lawful.
However, if he was captured rather than killed in the course of a firefight, as news reports suggest, then his killing violated a central tenet of the law of armed conflict: protection of the wounded and humane treatment for captured personnel. These obligations attach in either international or non-international armed conflict; to prisoners of war or to enemy fighters who do not merit such status. Equally important, in either case, the fighters who desecrated his body and dragged it around in celebration of the end of his 42-year reign of terror are guilty of war crimes.
These violations have their modern antecedents the murder of prisoners of war by both sides in World War II and the scenes of American servicemen being dragged through the streets of Mogadishu in 1993. Few, if any, debate the wrongfulness of these acts notwithstanding the nearly universal condemnation of Gaddafi's abusive and repressive tactics and the Geneva Conventions prohibit both denial of quarter and despoiling the dead.
In the absence of any significant debate regarding the legal principles at issue such as the debates that followed the killing of Osama Bin Laden in May 2011 the circumstances of Gaddafi's death provide an opportunity to remind us of the law of armed conflict's ancient and universal pedigree.
For thousands of years, societies around the world have regulated combat in some way, through custom or codes. From the Code of Hammurabi to the Laws of Manu to the chivalric code, different cultures have mandated protections for certain persons, methods of combat and other regulations. Here, we can look to two of the greatest storytellers in history to find the ancient foundations of the protections trampled upon in Sirte.
First, Homer's Iliad offers some of the bloodiest battle scenes a reader may find, a veritable catalogue of the horrors of war. Yet Homer hints strongly at customs mandating respect for the bodies of the dead, particularly after the great battle between Hector and Achilles. Achilles kills Hector, ties his body to his chariot, and drags it around. The gods, however, protect Hector's body from desecration and Homer's condemnation is stern: "nothing is gained thereby for his good, or his honour." The reader is left with little doubt that Achilles' conduct is dishonorable and violates existing codes of conduct.
Many hundreds of years later, William Shakespeare peppered his plays with allusions to chivalry and the law of war. One famous scene from Henry V is particularly apt. At the Battle of Agincourt, the English have captured a large number of French prisoners. Shaken by the prospect of a new French attack, King Henry issues an order for "every soldier [to] kill his prisoners." The response from Captain Fluellen, one of the King's officers, is scathing: "Kill the poys and the luggage! 'tis expressly against the law of arms." Again, the commentary is clear: denial of quarter has no place in the chivalric code.
For both storytellers the customs and laws prohibiting despoliation of the dead and murder of prisoners were fundamental principles to guide behavior during combat. They were, of course, frequently breached, just as today's wars tragically still involve atrocities against civilians and fighters alike. Such violations did not detract from the value or urgency of the law, however, instead highlighting the very need for such legal and moral principles.
No less, neither Homer nor Shakespeare justified such violations on the grounds of necessity or just cause. Thus, Homer and the gods condemned Achilles' treatment of Hector's body even though Hector had killed Patroclus, Achilles' friend and hero. Shakespeare condemns Henry's order even though he issues it ostensibly to help halt the French counterattack. In the same way, the horrors Gaddafi visited on Libyans and non-Libyans alike and the urgency of defeating him and ending his reign of terror in no way justify or excuse the desecration of his body or killing him upon capture.
The modern codified law of war dates back at least 150 years to the 1863 Lieber Code, but it rests on an ancient foundation. The values of honor, mercy and justice, among others, are the forbearers not only of today's detailed rules, but also of the principle of humanity, one of four key principles of the law of war. When this is forgotten, we have Homer and Shakespeare to remind us.
Laurie Blank is the director of the International Humanitarian Law Clinic at Emory University School of Law and was one of the principal founders of the clinic in 2007. Previously, she was a program officer in the Rule of Law Program at the US Institute of Peace in Washington, DC, where she ran a working group on New Actors in the Implementation and Enforcement of International Humanitarian Law.
Suggested citation: Laurie Blank, Gaddafi's Demise and the Law of War: Lessons from Literature, JURIST - Forum, Oct. 22, 2011, http://jurist.org/forum/2011/10/laurie-blank-gaddafi-demise.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org