On October 25, 2011, the Libyan National Transitional Council (NTC) announced that it would open a formal investigation into the death of former Libyan leader Colonel Muammar Gaddafi. On October 20, Gaddafi's convoy was hit by a NATO airstrike in Sirte. Gaddafi sustained serious injuries and video footage shows him alive immediately after the strike. Accounts of what happened following Gaddafi's seizure by NTC fighters are varied. An autopsy conducted by Libya's chief forensic pathologist, Dr. Othman al-Zintani, confirmed that Gaddafi died from a gunshot wound to the head. What remains unanswered is by whom and in what manner. Al-Zintani has not disclosed additional details of the autopsy and is set to deliver a full pathology report to the attorney general. The pathologist's report should be one of the key sources that the NTC investigation consults.
According to Libya's interim leader, Mustafa Abdel Jalil, the decision to establish the commission of inquiry was prompted by calls to probe the circumstances surrounding Gaddafi's death from the UN Office of the High Commissioner for Human Rights (OHCHR). The OHCHR has welcomed the NTC's announcement and stated that the process should be in accordance with international law. The laws of war under international law govern the investigation into the manner of Gaddafi's death. Article 3(1)(a) of the 1949 Geneva Conventions, read together with Additional Protocol II of 1977, states that all parties to an armed conflict are prohibited from killing wounded persons or people no longer actively participating in hostilities. Furthermore, Article 3(2) provides that all wounded parties must be cared for.
While opposing theories abound as to when and how Gaddafi met his end, the crux is establishing whether Gaddafi was killed intentionally or whether, as the NTC suggests, he was killed by crossfire. If Gaddafi was shot willfully, then the persons responsible for his murder violated the provisions of Article 3 and committed a war crime, and would be liable for prosecution. If, however, Gaddafi died a collateral death as a result of crossfire, then the matter might be put to rest. Clearly, a commission of inquiry is necessary to establish the exact facts.
The test for the NTC will be in ensuring that the commission of inquiry abides by the law. According to Christof Heyns, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, a proper investigation into Gaddafi's death will be a test for the transitional government as a democratic and accountable institution. It is imperative therefore that the commission of inquiry consists of qualified individuals who will investigate the facts of Gaddafi's death. Thereafter, the commission of inquiry must submit a report stating the facts and proposing a way forward. However, whether a fair and transparent inquiry will be conducted remains to be seen.
Meanwhile, reports have emerged that the NTC may have summarily executed 53 Gaddafi loyalists in Sirte. Though welcoming the decision to launch a formal investigation into Gaddafi's death, Human Rights Watch has also called on the NTC to investigate these allegations. Such a call ought to gain traction, as there are disturbing correlations between the claims of Gaddafi's execution and the deaths of his loyalists.
In addition to establishing a commission of inquiry into the deaths of Gaddafi and his loyalists, the NTC still has a responsibility to arrest and surrender Gaddafi's son, Saif al-Islam, and his former intelligence chief, Abdullah al-Senussi, to the International Criminal Court (ICC). Both al-Islam and al-Senussi remain subject to ICC arrest warrants for crimes against humanity committed during the Libya conflict, following the referral of the situation to the ICC by the UN Security Council. In terms of the UN Security Council referral, the primary responsibility is on the Libyan government to cooperate fully with and provide any necessary assistance to the ICC.
Now that the NTC is in power, it must prove itself to Libyans and the international community. Establishing a commission of inquiry into Gaddafi's death is one way in which the NTC can do this. It also should investigate the alleged executions of Gaddafi loyalists. Lastly, the NTC must adhere to its international obligations and ensure that justice is served for crimes committed during the Libyan crisis since February 2011.
Ottilia Maunganidze is a Researcher for the International Crime in Africa Programme at the Institute for Security Studies. Her main focus is on criminal justice mechanisms to deal with international crimes and the promotion and protection of human rights. Previously, she worked as a research intern for the African Security Analysis Programme, as a junior legal advisor at the Rhodes University Legal Aid Clinic, and as a student human rights education coordinator for the Rhodes University chapter of Amnesty International.
Suggested citation: Ottilia Maunganidze, NTC Must Investigate Gaddafi's Death to Establish Credibility, JURIST - Hotline, Nov. 6, 2011, http://jurist.org/hotline/2011/11/ottilia-maunganidze-gaddafi-investigation.php.
This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org