Qaddafi's death: Will the ICC launch a war-crimes investigation?

International Criminal Court prosecutor Ocampo is asking the UN for authority to investigate the death Libyan leader Qaddafi as a war crime.

The killing of former Libyan leader Muammar Qaddafi may have been a war crime, says the prosecutor for the International Criminal Court, Luis Moreno-Ocampo.

Captured by Libyan rebels outside his hometown of Sirte on Oct. 20, Qaddafi was killed by a mob of National Transitional Council soldiers and put on display in a freezer room in Misurata, as proof that he had been killed.

The circumstances of Qaddafi’s death raise “serious suspicions” that he may have been killed in custody, which is a violation of international law, Mr. Ocampo told the United Nations, in requesting the authority to investigate.

“The death of Muammar Gadhafi is one of the issues to be clarified — what happened — because there are serious suspicions that it was a war crime,” Moreno Ocampo said.

Reuters news agency quoted Ocampo as saying:

"I think that's a very important issue. We are raising this concern to the national authorities and they are preparing a plan to have a comprehensive strategy to investigate all these crimes."

What makes this case important to watch, besides the legal procedures and the outcome, is the way in which this case is perceived in the 54 capital cities of Africa. Since its inception in 2002, the International Criminal Court has only arrested and put on trial African suspects, from the Congolese warlord Thomas Lubunga to Ivorian President Laurent Gbagbo to the six Kenyan leaders accused of orchestrating post-election violence in 2008. ICC charges have also been lodged against Sudanese President Omar al-Bashir for crimes committed during the counterinsurgency in Darfur, although no country has complied with ICC requests for his arrest.

For skeptics, the ICC is a rich man’s court to try poor men. When an African leader launches a war that kills thousands, he is taken to The Hague, skeptics say. Why don’t Western leaders like George W. Bush – who also launched wars that killed thousands, and who authorized “enhanced interrogation techniques” of terror suspects in US custody – also get prosecuted at the ICC?  

There is a technical truth to the question. Only Africans have been brought to the ICC. Yugoslav President Slobodan Milosevic was brought to The Hague as well, but under a special tribunal separate from the ICC. Former Liberian President Charles Taylor is also facing trial at a separate tribunal in The Hague, while Rwandan-accused genocidaires have faced trial at a tribunal in Arusha, Tanzania.

Can't handle the cases at home

But the reason cases get referred to The Hague is that countries like Kenya and Sudan, Congo, and Ivory Coast are either unwilling or unable to handle the cases. Kenya’s parliament, for instance, was given time to set up a special tribunal to investigate charges that post-election violence in early 2008 was orchestrated by senior Kenyan politicians and media people, but refused to do so. The case was then referred to the ICC.

Launching a criminal investigation against the Western-backed Libyan rebels who overthrew and killed Qaddafi will not remove the skepticism of Africans overnight, of course. But laws will only be accepted if they are perceived to be applied fairly, and the greatest impact of a Qaddafi death investigation may be in the perception of fairness and impartiality of the ICC.

Ocampo’s investigation apparently comes at the behest of Qaddafi’s daughter, Aisha, who asked the ICC prosecutor to look into the circumstances of the Libyan leader’s death as he investigated other human rights crimes committed in Libya by both sides.

According to a letter obtained by Reuters news agency, Aisha’s lawyer Nick Kaufman wrote to the ICC prosecutor that Qaddafi and his son Mutassim were "murdered in the most horrific fashion with their bodies thereafter displayed and grotesquely abused in complete defiance of Islamic law."

"The images of this savagery were broadcast throughout the world, causing my client severe emotional distress. To date, neither Ms. Gaddafi nor any member of her family has been informed, by your office, of the initiation of an investigation into the circumstances surrounding the brutal murders," the letter said.

One case isn’t going to change the ICC’s image in Africa as a kangaroo court for the West. But if the ICC builds a track record of equal application of international law, the distrust felt in many African capitals will begin to wane.