Can Haftar be indicted for war crimes?

Can Haftar be indicted for war crimes?
6 min read
09 Nov, 2017
Comment: With the international community continuing to ignore allegations of Haftar's ongoing war crimes, will he ever see the inside of a court room? writes Guma El-Gamaty.
Haftar's forces have been accused of numerous war crimes in east Libya [AFP]
Massacres and cold blooded killings of civilians in Libya, especially in the east of the country by forces loyal to Haftar, have become more frequent in recent months.

Observers voicing concern and condemnation have become more outspoken, including some who were, until recently, seen as supporters of Haftar.

On 26 October 2017, 36 bodies of dead civilians - some with signs of torture and gunshot wounds - were found in Al-Abyar, about 70km east of Benghazi in an area controlled by Haftar;s forces.

On 30October 2017, air strikes in Libya's eastern city of Derna resulted in the deaths of 16 civilians - most of the victims were from the same extended family, including 12 children.

While both Haftar's spokesman and the Egyptian government denied they were behind the strikes, the planes are alleged to have originated from Egypt, according to eyewitnesses and other sources. It is also alleged they coordinated with Haftar's forces.

The narrative of condemnation is shifting decisively towards calls for those who are responsible to be held accountable for these war crimes.

The UN, through the International Criminal Court (ICC), is ultimately responsible for investigating and taking action against such war crimes. The ICC did very little in Libya last year, as confirmed by Amnesty International in its 2016-2017 Libya report.

A military commander can be liable for the war crimes or other crimes of his subordinates over whom he has effective command and control

This report stated that "the ICC initiated no new investigations in 2016, citing security concerns and insufficient resources". 

However, on 15 August 2017, the ICC did issue an arrest warrant against Mahmoud al-Werfalli, Haftar's commander of Special Forces, for war crimes including the documented summary killings of civilians.

Werfalli is merely a subordinate holding an official rank in General Haftar's army. The same applies to others fighting under Haftar who may have been involved in war crimes.

There are documented statements and video footage of Haftar defending and even justifying such crimes, before refusing the idea of handing any suspect to the ICC.

This prompted the NGO Human Rights Watch (HRW) - to warn Haftar he may be implicating himself in such crimes. HRW said in a detailed statement early this year that "by issuing statements justifying these barbaric acts, the LNA leadership is implicating themselves in what appear to be war crimes".

Strictly speaking, the responsibility for war crimes perpetrated by any force lies with their senior commander.

According to a top British legal expert "a military commander with command responsibility, can be liable for the war crimes or other crimes of his subordinates, over whom he has effective command and control, even though he has not directly participated in the crime or encouraged it in any shape or form".

Assuming that the ICC is truly independent and free of any leverage from the major countries in the UN Security Council, there is very solid ground for it to investigate Haftar's responsibility for war crimes.

This could be politically difficult however, considering that major western countries such as France, Italy and the UK have been courting Haftar and giving him political legitimacy.

As the Libya expert for the European Council on Foreign Relations, Matia Toaldo, told the Guardian newspaper recently: "the more Haftar was legitimised, the less likely it was that he would ever be prosecuted".

This, however, has not stopped a few groups from working to provide the legal arguments, including compiling volumes of detailed evidence that could trigger an investigation of war crimes and may lead to a possible indictment of Haftar.

Libyan activists in the USA met with government legal officials in Washington on 10 October 2017 to submit a dossier as a formal complaint. They requested an investigation into alleged war crimes by Haftar, who holds dual nationality as a US citizen.

"The complaint encompasses three volumes of more than three hundred pages, and lists the specific legal statutes which were violated, legal analysis, biographies of the alleged perpetrators, and catalogues an overwhelming inventory of evidence of these war crimes."

There is very solid ground for the UN Security Council to investigate Haftar's responsibility for war crimes

Another strong piece of video evidence analysis was published on 19 September 2017 by two top American experts: Ryan Goodman, a former special counsel to the general counsel of the Pentagon, and Alex Whiting, a former ICC prosecutor.

The evidence, published in the Just Security blog, argues that Haftar has been responsible for calling for extrajudicial killings and the unlawful siege of the eastern port city of Derna. Such powerful analysis by two top American legal experts is a strong basis for implicating Haftar in war crimes.

On the sidelines of a UN Human Rights Council meeting in Geneva on 26 September 2017, a briefing was organised by "Human Rights Solidarity". This is a Libyan human rights group, in which Libyan witnesses and family survivors spoke of "extrajudicial killings, forced hunger and displacement" that they or their family members experienced under Haftar forces in the one year sieges of Derna and Ganfouda, west of Benghazi.

In June of this year, a report by the United Nations Sanctions Committee panel of experts confirmed in detail how the UAE and other countries have consistently violated a UN arms embargo on Libya in recent years.

Read more: Libya's path to peace needs grit and determination

The UAE has, as a result, significantly strengthened the military capabilities and prowess - especially air power - of Haftar's forces. There are also allegations that the UAE sent fighter planes from west Egypt to launch air strikes against the city of Derna inflicting civilian fatalities. 

Haftar has been in total control of the east of Libya for the last three years and consequently controlled the Libyan parliament based in Tobruk. The delegation it sent to the UN-sponsored negotiations that began a few weeks ago in Tunisia could not make the necessary compromises to strike an agreement.

Parliament stated implicitly this was because Haftar would not accept such a deal, and he has the ultimate say there.

While some major countries still see Haftar as part of the solution in Libya, in reality he is very much part of the problem

While some major countries still see Haftar as part of the solution in Libya, in reality he is, along with some extreme militias in the west of the country, very much part of the problem - and a major obstacle to reaching peace and stability.

How long can the ICC and the international community continue to ignore the overwhelming evidence for Haftar's liability for war crimes?

Will he ever be indicted for such crimes?

This will very much depend on the boldness of the ICC, which has, in the past, issued arrest warrants against numerous leaders and army commanders for war crimes.

An indictment of Haftar has strong legal and moral basis and will weaken him politically to the extent that he can no longer obstruct a political agreement. Ultimately, it would accelerate a national accord, peace and stability much sooner in Libya.

Guma El-Gamaty is a Libyan academic and politician who heads the Taghyeer Party in Libya and a member of the UN-backed Libyan political dialogue process.

Follow him on Twitter: @Guma_el_gamaty

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab