The Brother Leader was reportedly wounded when captured by forces loyal to the new Libyan government on October 20th, 2011. The death of Muammar al-Qadaffi was made public a few hours later. Amnesty International suggests that a war crime may have been committed. As the circumstances surrounding his decease remain fuzzy, it is natural for zealous international lawyers to wonder.
The change of regime did not impact upon the applicability of international humanitarian law in Libya. The forces of the National Transitional Council were and remain bound by both customary law and the Geneva Conventions. It is not disputed that an armed conflict was taking place in Libya, thus triggering the application of the laws of war. The sensitive question relating to the character of the conflict is irrelevant, as will be shown shortly.
Considering Gaddafi’s position in the Jamahiriya system of government and his role in the conflict, he arguably constituted a legitimate military target. Once captured, however, he was undoubtedly hors de combat and should thus not have suffered further ill-treatment. The prohibition of attacks against persons hors de combat is a customary rule of international humanitarian law applicable to both international and internal armed conflicts.
Such an attack further constitutes a war crime under the Rome Statute of the International Criminal Court, which has jurisdiction over any act committed by Libyan nationals on Libyan territory since the referral of the situation by the UN Security Council.
The NTC recently announced the creation of an investigation commission which should hopefully clarify in details the circumstances of Muammar Gaddafi’s decease. In the meantime, hypotheses may legitimately be explored.