Video footage which emerged yesterday appears to show that Colonel al-Gaddafi was alive when he was captured by anti-Gaddafi troops in Sirte yesterday.
“If Colonel al-Gaddafi was killed after his capture, it would constitute a war crime and those responsible should be brought to justice,” said Claudio Cordone, Senior Director at Amnesty International.
Killing a combatant after he’s surrendered is a violation of both the International Criminal Court’s statutes and the Geneva Conventions. But as Foreign Policy‘s David Bosco points out in this excellent analysis, the fact that Qaddafi’s death likely was a war crime probably doesn’t matter.
The choices of the prosecutor and the rulings of the ICC judges in recent years have made abundantly clear that the court prioritizes large-scale crimes that form part of a broad pattern or practice. Given that emphasis, it is unlikely the court will ultimately prosecute anyone for Qaddafi’s killing unless they decide that there existed within the anti-Qaddafi forces a broad practice of war crimes or crimes against humanity and that the Qaddafi killing was a manifestation of that.
What’s more, the new Libyan authorities could foil any ICC investigation by carrying out their own investigation. With a national investigation underway, the ICC must yield unless it determines that the investigation is a sham. To the chagrin of many (mostly outside Libya, it seems), Qaddafi will never now see a courtroom in the Hague; neither will whoever killed him.