By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

Much credit seems due to the NATO force in Libya’s eight months liberation movement which had lost not even a single life in the eight months fight of ousting the Libyan dictator. No doubt that the strict enforcement of the no-fly zone had significantly augmented the rebels’ strength in digging deep into the strong holds of the Libyan army. Countless Libyans have dearly sacrificed their lives and stood shoulder to shoulder until they scored that decisive victory on 12 Oct, 2011 by killing the 69 year old dictator Muammar Gaddafi. History is being written in the minds and hearts of the living, and future generation, of course by the blood of those who had lost their lives selflessly.

Truth must be told that the victory that the Libyan public is yet to cherish has come through the agency and sacrifices of the same Libyans. The acknowledgement of this fact is of paramount importance both for the past, the present and future fate of the country. The past must benefit from the true records of history so that the martyrs to be remembered for posterity; while the present must be permeated with that sense of victory and ownership so as to remain empowered for what is to happen right now; well the future, that is what all the sacrifices are meant for, to ripe the benefits of lasting peace, democratic governance and the rule of law.

This fact is all the more decisive in providing the required morale for those who are yet to write their own history by ousting their dictators single-handed. It must be acknowledged a united public motivated by the thirst for just social order would be stopped by no earthly force. And what the Libyans did was clearly opposing the ‘right of might by the might of right.’ This belief and achievement, I suspect, would largely be undermined where a higher credit is made to go to the external and aerial force that only operated from above in facilitating the road to Benghazi, Misrata, Sirte, Tripoli, etc. Underscoring the role of MI5 and MI6 agents, or the Canadian or French veterans’ role in whose name a celebration is to be held, celebrating the US secretary of state’s diplomatic calibre and her president’s exceling ability in discharging his role as commander in chief, only reveal the blind-folded rush to regard the victory solely to be that of the coalition force. We listen to the news that primarily discusses how the killing of Gaddafi would boost the polls of the presidential candidates in the upcoming elections in France and the US.

Acknowledging the super powers’ role

It is not my desire to usurp the credits that must duly go to the US that played the initial and defining role towards enforcing the no fly-zone resolution and the NATO force that took over full control of the mission a week after the start of the operation and oversaw it through till the end. That had significantly reduced the risks of civilian massacre that Gaddafi was dangerously disposed to carry out, and solidified the rebels’ determination to get rid of the regime.

They enabled the rebels to corner Gaddafi and put him within a bullet reach to finally watch the august autocrat plead for mercy from the very people whom he had defiantly called rats and infidels. And to his misfortune, those who had him captive emoted more than they reasoned under the circumstances as we saw his last moments on the global media outlets. That possibility would have hardly materialised in time if it were just the liberation forces that were left to face the mighty hands of Gaddafi’s military, mercenaries and those supporters who were highly intoxicated by hate against the liberation forces that Gaddafi managed to saw. Acknowledging that is important in many respects but above all for the symbolism it embodies for others to observe that the international community would not remain as an inactive on-looker in the face of impending genocide. For that no doubt the Libyan people must extend their effusive gratitude and recognition.

A need for recording history

The Egyptians, after the forced resignation of Hosni Mubarak on 11 Feb 2011, instituted a Committee to Document the 25th January Revolution. The task of recording peoples’ power for posterity by the people themselves who have done the history is crucially needed for Libya and Libyans. The capture of Saif al-Islam (the sword of Islam) and Abdullah al-Senussi marks a significant leap forward to the end of the Libyan liberation struggle. Saif’s statement about his wounds on his hand as being inflicted by the NATO air strike a month ago explicates the card he wishes to play by blaming the West. He consistently defies acknowledging the ICC’s jurisdiction and showed now his preference to his home-based justice, or so it appears. The capture of these two prominent figures of the former regime some 19 days after NATO’s engagement officially came to an end discloses the salience of the NTC force and new Libya that started the revolution and also reveals its capability to sustain that victory.

It is now an opportune time to start piecing events together for the purpose of recording history that the Libyans have written, and the sacrifices that have been paid by the death of over 30,000 people. Unlike Egypt and Tunisia, in Libya there had been an external involvement of a new sort that only provided an aerial support to cripple Gaddafi’s military capabilities. That requires due recognition in writing the history of the Libyan revolution. History provides the groundwork that enables the present and future generation to march forward through a rightful path by avoiding the wrongful turns of the past. Accordingly, those recordings must establish a balanced account about the proper owner of the victory and the invaluable contributions made by the outside forces.

By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

The news of Muammar Gaddafi’s death has come as a surprise leaving quite many unanswered questions. The event clearly marks the end of a 42 year old dictatorship in Libya and indeed it could be considered as a national liberation day. Nonetheless, for the 6.7 million people Arab country it evokes issues that remain yet to be further interrogated.

Liberation movement denying justice to the unjust leader?

The eight months old liberation fight has been rationalised by the ideals of freeing the nation from decades of unjust rule by the Cornel and his entourage. Now that his power had been significantly eroded it was only a matter of not ‘whether’ rather ‘when’ he would be caught. After Sirte became increasingly exposed to the NTC’s fighters what most people, if not everyone, expected was the capture of the former Libyan leader and then after as it had been claimed, to bring him to the national judicial system for his trial.

What we have seen live in the pictures, however, turned out to be a very powerful man being dragged on the ground by angry and amateur fighters of the TNC. Could this, therefore, be regarded as denying justice to the dictator who ruled Libya for 42 years unjustly?

It is something to fight for the fall of a dictator but completely another thing to do justice to what the dictator did. Though the circumstances leading to his death are yet to be unveiled, it is certain that he was alive when captured. Thus, the fears for extra-judicial killing loom large unless the TNC comes up with convincing evidence to prove the contrary, which could be that in fact his death happened as a result of cross-fire gun shots, and not by ‘shot-to-kill’ type of measure. Even if it can be proved that he died in cross-fire that too would build a martyr’s reputation for the Cornel who ruled his nation as a soldier since his young age of 27 and also died as one. However, at the minimum that would spare the TNC’s profile from being tarnished by accusations of extra-judicial killing at these defining periods of transition.

We have witnessed in this same year the assassination of Osama bin Laden who was found unarmed in his Abbottabad house with his family and shot to death by the American Commandos. It is therefore interesting to ask if that measure is setting a new precedent in dealing with those individuals that otherwise should have been brought to justice for trial and conviction.

Now that Gaddafi is no more at large, members of his family, particularly the LSE educated son of Gaddafi-Saif Al Islam-could continue to pose a challenge to the TNC. On the other hand, they provide a second chance for the new Libya to exercise and taste the virtues of forgiveness, justice rendition and inter-communal reconciliation. One truth is however we may legitimately hope that Libya will not be any worse in governance without Gaddafi.

By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

The tasks ahead, apart from sealing the protracted success stories by apprehending Gaddafi who symbolises tyranny in Libya and the region, relates to state building, disarmament and inter-communal reconciliatory dialogues. The last days of Gaddafi’s rule amassed the nation with weapons so that supporters could hunt down the ‘rats’ and the ‘infidels’, who are, for the majority of the Libyan public, the liberators. The dictator also had made last minute attempts to instil hatred, animosity and tribal differences among the community.

On the other hand, the liberation force is staffed with voluntary youth soldiers without any prior experience and training on combat. Accordingly, it is all the more challenging to disarm and demobilise this group of fighters by the NTC.

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Ex-President Mubarak appeared in Court, caged and bed-ridden, on 3rd August 2011 charged with corruption and the murder of over 840 protesters. His trial was adjourned and will re-open on Monday 15th August 2011. If found guilty, Mubarak may face the death penalty.

Murder Charges Against Mubarak

The murder charges against the former President are primarily based on accusations that he ordered the Police, as their Supreme Commander, to use lethal force. The prosecution has given itself a high burden of proof, but they appear to be confident of meeting it. In particular, the Former Interior Minister stated in interrogation that Mubarak gave orders to use live ammunition against protestors American Library of Congress. The Court may also rely upon (an analogy with) the International Law of Command Responsibility, in particular the liability of a Head of State for Policy Command. This now “well established” doctrine attributes responsibility for both positive acts and for omissions, including failure to prevent or punish crimes that the individual knows or ought to know are likely to be, or to have been, committed (see the Čelebići judgment, judgment of 16th November 1998 at para. 333).

However, many of the murders that are ultimately attributed to Mubarak were reportedly committed by his armed supporters who were not part of organised military units, let alone members of the Armed Forces. These militiamen are likely to have simply taken matters into their own hands, rather than carrying out express orders. Applying the standards of Command Responsibility, it would be difficult to say that these groups were under the legal or effective control of the former President. However, it may be possible to prove that Mubarak incited the killings. Indeed, the Arab Centre for the Independence of the Judiciary and the Legal Profession has allied itself with a number of other Arab Human Rights Groups to call for the prosecution of the Minister of Mass Media for the use of the Egyptian media to incite violence against protesters.

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By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

It is now 4 months since the Operation Odyssey Down (as named by the US), Operation Harmattan (as named by the French), Operation Ellamy (as named by the UK), and Operation Mobile (for the Canadians) has started enforcing on Libya the UNSC Resolution 1973 that authorises, among others, a no-fly zone over Libya, freezing of assets, enforcement of an arms embargo, ban on flights, and all other necessary measures to protect innocent civilians. Recent predictions are being heard about Muammar Gaddafi’s readiness to cede power (see The Telegraph, 12 July 2011). However, since this was a statement that he said three days after it had been reported about his warning to attack Europe (The Telegraph 09 July 2011), the optimism is far from real. The hard truth that he will have to face is nonetheless his days are numbered as the opposition gets emboldened by every single day as the backing by the international community intensifies.   And it is reasonable to make notes, on the basis of ‘if it happens’, about the issues of transition to a new dawn for Libya.

One critical decision that befalls the Libyan public and the transitional government would be issues relating to how to deal with those individuals responsible for so much atrocity and in holding them to account. That task would either make or break the momentum, legitimacy and sustainability of the leaders of the opposition who would temporarily be running the nation. The Libyan military, unlike what we saw in Egypt, is not an organ on whose hands the transitional government power could be placed for the very reason that it is killing the Libyan people that it was supposed to protect in these trying days. If one ventures on possible ‘whys’ behind the success of the Egyptian popular uprising, the military personnel’s wisdom, self-imposed restraint, and progressive thinking on impartiality of the military as a public institution must come as part of the list of those reasons. Obviously this by no means puts the Egyptian military personnel in general in complete innocence as there had been over 900 reported deaths that happened during that revolution as well. On balance, however, what we see in Libya compared to Egypt is a complete opposite.

Forgetting or facing the past

Acknowledging the undesirability of ‘let’s try to forget it’ type of approach as a categorical position must be the starting point. It is never possible to cover up these horrendous violations no matter how clever we are in convincing the public that revenge is of no good for the future. Even if people may be told to forgive, forgetting is not that simple and those wounds will eventually fester with a renewed momentum of anger, desires for retribution and dire need for re-establishing the lost dignity. Thus, there has to be a consensus on the relevance of facing the past rather than trying the impossible, which is to forget it.   

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By Natasha Harrington, pupil barrister (Essex Court Chambers, London)

On 27th June 2011, the Pre-trial Chamber of the International Criminal Court (ICC) issued arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (see here). The Court found reasonable grounds to believe that the three have committed crimes against humanity by murder contrary to article 7(1)(a) and persecution of opponents to the Gaddafi regime contrary to article 7(1)(h) of the Rome Statute.

Muammar Gaddafi has become the second serving head of state, following President Al-Basheer of the Sudan, to face prosecution by the ICC, where state officials are not immune from prosecution. Libya is not a State Party to the Rome Statute. Therefore, the jurisdiction of the Court is based on United Nations Security Council Resolution 1970, referring the situation in Libya to the ICC as of 15th February 2011, in accordance with article 13(b) of the Rome Statute.

In contrast, no investigation or charges have been brought against any members of the National Transitional Council (NTC), despite a report from the U.N. High Commissioner for Human Rights that cited evidence of serious abuses by NTC forces. Nevertheless, Gaddafi has made clear his intention to use the Libyan State courts for this purpose, and to try the NATO member states for war crimes.

Justice 1: 0 Peace?

If Gaddafi and his close associates do not relinquish power and slip away it may take NATO and the NTC many more weeks and months to remove them, and in the process Libyan civilians and the unity of their country will suffer the most. Many are now questioning whether the ICC arrest warrants are a triumph for justice at the expense of peace because, in the words of the Italian Foreign Minister, once a warrant is issued ‘from that moment on an exit from power or from the country will no longer be imaginable’.

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By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The European Court of Human Rights (ECtHR) has given on the 7th July 2011 a judgement (Al-Jedda case) holding the United Kingdom responsible for the acts of its military forces in Iraq in what may be called a significant blow to the ever unchecked multinational military operations under the names of maintaining international peace and security, war on terror, or as recently emerging dubious guise ‘to protect civilians and civilian populated areas under threat of attack.’

The case (Al-Jedda v the United Kingdom, available here) involved an Iraq-born individual who had been interned or detained in Basra for over three years, between 2004 and 2007. Basra internment centre was controlled and run by the British forces in Iraq and he was held for purposes of investigation on his alleged involvement, among others, in recruiting terrorists outside Iraq to commit atrocities in Iraq, for helping an identified terrorist explosives expert travel into Iraq, and conspiring with that explosives expert to conduct attacks with improvised explosive devises against coalition forces near Fallujah and Baghdad. 

After his release (and being denied re-entry into the UK to which he had become a national), Al-Jedda had brought actions, though unsuccessfully, before various national organs until his case was dismissed by the House of Lords which reiterated that because of the UN Security Council’s (UNSC) Resolution, the British government’s responsibility under the European Convention on Human Rights (ECHR) cannot be invoked. The House of Lords reasoned that the mandate the UNSC Resolution 1546 had placed on the UK government brings the UN as the proper organ responsible for the internment measures taken on Al-Jedda which, because of Article 103 of the UN Charter displaced the applicability of Article 5(1) of the ECHR. According to Article 103 of the UN Charter ‘in the event of conflict between the obligations of the members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

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