How can international law accomodate Gaddafi's death before his arrest? Questions about posthumous legal procedures over the killing of a suspect of international crimes follow in the wake of his murder. He was sought by the International Criminal Court for crimes against humanity.
By Josephine Uwineza, The Hague
Gaddafi’s vast assets beg many questions - not least, of access by victims. Honing its case in on him personally, the ICC found reasonable grounds to believe that Gaddafi was an indirect perpetrator of crimes against humanity. He was at the centre of the court’s investigation.
His son Saif al-Islam and spymaster Abdullah Al-Senussi are alleged co-perpetrators of violence committed since February. In their arrest warrants, the prosecutor submitted that "although the exact number of casualties resulting from the attacks can not be known due to a cover-up campaign implemented in order to conceal the commission of crimes by the security forces, there are reasonable grounds to believe that... within a period of less that two weeks in February, the security forces killed and injured, as well as arrested and imprisoned hundreds of civilians."
Suspect dies before arrest
However, the ICC does not provide for cases of death before arrest. The circumstances surrounding Gaddafi’s death are similar to those of ICC Ugandan LRA suspect Raska Lukwiya. He was indicted in 2005 but then killed on the battlefield in a fight between LRA rebels and Ugandan forces in 2006. But the judges’ decision in Prosecutor vs. Raskka Lukwiya is likely to be applied in Gaddafi’s case.
It took three months to confirm the death of Raska Lukwiya. The Ugandan government stated that results of DNA testing coupled with the identification of the body by Lukwiya’s family members and former LRA members as well as confirmation of the LRA command itself certified that Raska Lukwiya was killed. Furthermore, Ugandan authorities received assistance from the Netherlands Forensic Institute in submitting a report confirming identification of the human remains.
What’s next for the ICC?
In Prosecutor vs. Vincent Otti, the suspect reportedly died at an unidentified location and no remains were found. Accordingly, there have been no procedures confirming his death before the court. Otti is still considered to be at large. So, confirming Muammar Gaddafi’s death legally will be an important step for the ICC in establishing posthumous procedures for ICC suspects.
The precedents set by the Lukwiya and Otti cases have profound implications for the legal pronouncement of Gaddafi’s death. The case against him will most likely be closed. But witnesses and victims’ issues shared with his two co-accused will continue. In Prosecutor vs. Raskka Lukwiya the judges continued to provide protective measures for witnesses, and to allow victims to participate in proceedings – despite the fact the suspect had died.
In that regard, the new Libyan leadership’s commitment to cooperate with the court is paramount. The National Transitional Council (NTC) must now honour its commitment to hand over Gaddafi’s co-accused - his son and his former intelligence chief, to face international justice in The Hague.