NATO may be investigated by ICC for alleged war crimes in Libya

 

According to a report by the Associated Press (11 November) some NATO diplomats are worried that the alliance may be investigated by the International Criminal Court (ICC) after its prosecutor said allegations of crimes committed by NATO in Libya would be examined "impartially and independently".

The NATO diplomats speaking anonymously said action to pre-empt a war crimes investigation would likely include an immediate internal legal review of all incidents in which NATO bombing or other actions caused civilian casualties.

NATO has always maintained that its operations in Libya were carried out strictly in keeping with the UN Security Council mandate and alliance officials repeatedly cite the precision with which the mission was carried out. NATO Secretary General Anders Fogh Rasmussen even refuses to acknowledge that were any civilian deaths caused by the bombing. During his monthly press briefing on 3 November, he said:

As regards collateral damage, I have to say that we conducted our operations in Libya in a very careful manner, so we have no confirmed civilian casualties caused by NATO…….. Our air strikes have been precision strikes. We have targeted legitimate military or hit legitimate military targets and minimized the collateral damage. And for that reason I don't see any need for further investigation.

Yet, in a briefing to the UN Security Council on 2 November, ICC prosecutor Luis Moreno-Ocampo said "there are allegations of crimes committed by NATO forces (and) these allegations will be examined impartially and independently". No further elaboration of the accusations against NATO forces, or who was making them, was given. His office is currently focusing on crimes committed by members of the ousted Gaddafi regime and is waiting for a report by a UN Commission of Inquiry in Libya, due in March 2012, before deciding whether to proceed with a formal investigation into alleged crimes by NATO.

Between March and October NATO warplanes flew 26,000 sorties, including more than 9,600 strike missions, destroying more than 1,000 tanks, vehicles, and guns, as well as buildings claimed to have housed "command and control" centres. These included facilities such as Gaddafi's heavily fortified compound in Tripoli, but also residential homes of his supporters — targets which could be considered outside the UN mandate.

The definition of war crimes, as described by international conventions on the laws of war, includes any destruction of civilian targets not justified by military necessity. It has been invoked in a number of trials dealing with conflicts in Bosnia, Croatia, Kosovo and elsewhere.

Speaking to the Associated Press Moreno-Ocampo clarified his thinking a little: "We are not talking about any specific incident. We are saying, 'Yes, if there are allegations of crimes we will review that'".

In the last weeks of the war, the Gaddafi regime alleged that 85 civilians were killed in a NATO air strike near the front line town of Ziltan. Khaled Hemidi, a regime general, has filed a lawsuit before a Belgian civil court in Brussels accusing NATO of killing his wife and three children in an air strike on June 20 near the town of Surman.

Currently, nearly 120 states are parties to the ICC. All NATO members with the exception of the United States have accepted its jurisdiction.

Since NATO is not a signatory to the ICC treaty, it would appear likely that any violations of the conventions on the laws of war would require direct dealings between the court and its member states, and not with NATO as an institution.

"If there were to be evidence that NATO is also involved in activities illegal under international law, something should be done about that," said Nicolas Beger, director of the Amnesty International European Institutions office. "Nobody should be allowed to commit war crimes, and nobody should be able to get away with it".