- By David BoscoDavid Bosco is a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
Just in time for the NATO summit, the Russian foreign ministry is urging the International Criminal Court (ICC) to investigate any civilian deaths in Libya caused by NATO airstrikes:
The International Criminal Court should look into all cases of NATO airstrikes in Libya that resulted in civilian deaths, the Russian Foreign Ministry said.
"We welcome the decision of ICC Prosecutor Luis Moreno-Ocampo to consider alleged violations of international humanitarian law," Foreign Ministry human rights spokesman Konstantin Dolgov said in a statement posted on the ministry’s Web site. "We presume that the ICC will consider all cases of NATO bombing that caused civilian casualties."
Human Rights Watch released a 76-page report this week documenting what it describes as eight separate strikes that resulted in more than 70 civilian deaths. The advocacy group insists that the alliance has not done enough to investigate the incidents: "NATO officials told Human Rights Watch that all of its targets were military objectives, and thus legitimate targets. But it has not provided specific information to support those claims, mostly saying a targeted site was a ‘command and control node’ or ‘military staging ground.’"
NATO fired back with a statement:
NATO has looked into each credible allegation of harm to civilians. We have reviewed all the information we hold as an organisation and confirmed that the specific targets struck by NATO were legitimate military targets. Individual allies are continuing to conduct further assessments into some of the alleged incidents.
This was the first air campaign in history where only precision-guided munitions were used. NATO approached each individual targeting decision with extraordinary caution. We had solid intelligence and a very strict target selection process. The day of the week, time of day or night, or even the direction of attack were carefully considered to minimise any risk of civilian casualties. We conducted 9,700 strike sorties and dropped over 7,700 precision bombs, but no target was approved or struck if we had any reason to believe that civilians would be at risk….Over the last summer, as was well documented, the situation on the ground in Libya was highly fluid, and for tactical advantage, the Qadhafi regime often used civilian rather than military infrastructures, to conduct military activities, including mosques and hospitals. At the time, regime forces often wore civilian clothing and drove civilian vehicles.
NATO provided regular and detailed briefings to the United Nations Security Council throughout the conduct of the operation. Moreover, NATO fully cooperated with the International Commission of Inquiry on Libya (ICIL) and provided a significant amount of information, much of which had to be de-classified, to show that each target struck was a legitimate military target.
Most NATO members carrying out airstrikes in Libya are ICC members, and the court would in theory have jurisdiction over any war crimes committed by their forces. The court would not be able to reach American forces however. The UN Security Council resolution referring Libya to the court made that quite clear:
[N]ationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations…
Two recent precedents suggest that the prospect of any ICC indictments–or even sustained inquiry–into NATO activities are vanishingly small. In 2006, the ICC closed its file on alleged British abuses in Iraq without pursuing any cases. The prosecutor determined that the scale of the alleged abuses did not meet the court’s "gravity" threshold and noted that the British were, in any case, investigating abuses themselves.
Even more relevant is the decision by the international tribunal for the former Yugoslavia not to pursue indictments against NATO for alleged civilian deaths during the 1999 Kosovo air campaign. In that case, interestingly, the prosecutor, Carla del Ponte, later expressed frustration at NATO’s unwillingness to provide her with detailed information regarding the alleged incidents.