Rules of War

The misfortunes suffered by Muammar Gaddafi in Sirte on 20 October unfolded in a succession of confused online updates. A report of his capture in a firefight rapidly mutated into claims that crossfire somehow killed him as he was sped to hospital, or that his own bodyguards had shot him in the back. The fog of war was then pierced – or, more accurately, lit up – by a series of mobile phone videos. They show Gaddafi among his adversaries, dazed but alive. Slumped against a car, he wipes a livid head wound and stares bewildered at his bloody hand, before the seething crowd reduces him to a senseless pulp. Tyrant was thereby turned into victim, and the snuff movies of Sirte soon found their sequel in a memento mori in Misrata, when Libya’s victors triumphantly laid out his half-naked corpse for public viewing in one of the town’s meat refrigerators. Over a long weekend, sightseers trooped through by the thousand. It was four days before the fridge door closed, by which time visitors were wearing surgical masks to take their snapshots. Only then did the decomposing body get the burial it was due.

There is scope for argument over whether Gaddafi’s degradation involved punishable offences. The rules of war considered customary by the international community, as reflected in the Geneva Conventions, don’t penalise fighters for being jumpy or truculent; and though they oblige combatants to treat dead enemies with honour, the substance of that duty has been eroding since July 2003, when the US army published photos of Saddam Hussein’s sons to prove their death. The American use of post-mortem images is today considered almost unremarkable – when Obama declined last spring to release pictures of bin Laden’s body, his decision was greeted around the world with as much scorn as praise. Many Libyans in Misrata and elsewhere have meanwhile expressed amazement that their actions might be open to criticism. Yet anyone who imagines that Gaddafi existed somewhere beyond empathy’s range might usefully ponder the video that appears to show the 69-year-old, as he bleeds to death, being sodomised with a stick or a bayonet.

The moral issues assume some importance given Mustafa Abdul Jalil’s promises, made three days after Gaddafi’s death, that the ‘basic source’ of authority in the new Libya would be the Sharia – scholars of which have sought for more than a millennium to contain the cruelties of battle within a moral framework. Hundreds of years before the Normans developed Europe’s chivalric codes, eighth-century jurists were explaining why God expected Muslims to show their vanquished enemies respect, and attributing to Muhammad commands against mistreatment of the dead. Islam’s laws of war were complemented by funeral rituals which insisted on swift and reverential interment in all cases. No Muslim scholar worth the name would ever argue that God sanctions the gunning down and sodomy of unarmed captives – or that the exposure of an adversary’s cadaver is sanctioned by sacred tradition.

The interim government merits praise then for having announced that a committee would be set up to investigate what happened to him. It arguably deserves even more credit for afterwards undertaking, in response to growing international pressure, that anyone found to have shot him without lawful excuse would face prosecution. But as that lurching progress implies, its efforts have so far been driven by pragmatism rather than principle. And though revolutionaries can hardly be blamed for responding to events, the decision to establish an inquiry throws up an important question. If the NTC promised to govern according to the Sharia – a word which, in Arabic, connotes a path of great rectitude, similar to the English ‘straight and narrow’ – was not mere hyperbole (indeed, even if it was), what kind of inquiry is it going to be? The issue is particularly significant in Libya, which has first-hand experience of just how easily talk of religious justice can cloak oppression. One of the less known facts of Islamic legal history (admittedly, a substantial category) is that no 20th-century state except Saudi Arabia imposed Quranic penalties until the early 1970s. Libya was the first country to follow suit, with measures to authorise the amputation of thieves’ limbs and the flogging of fornicators and drunks – and the man who enacted them, in ostensible pursuit of the Sharia, was a fresh-faced Colonel Gaddafi.

Islamic jurisprudence, in flux for four decades, is up for grabs again – and the signs are no better than mixed. In his speech invoking the Sharia, Jalil, himself a former judge, told listeners that Gaddafi-era statutes in violation of God’s law were void – and chose to illustrate the point by condemning a provision that allows Libyan wives to withhold their consent to polygamous marriages by their husbands. Although Jalil then reconsidered his position, assuring international journalists a day later that ‘we will not abolish any law,’ this raised a question mark of its own, given some of the cruelties sanctioned by existing Libyan legislation. As a consequence, the attempt to assess the rights and wrongs of Gaddafi’s death is going to constitute something of a litmus test. Recent upheavals in the Muslim world have been repeatedly disfigured by flawed processes – from the judicial lynching of Saddam Hussein to the ongoing farce of Hosni Mubarak’s trial – and the inquiry could serve to show that Libya has taken a new route, which accommodates international standards within an Islamic framework. It could, alternatively, signify storms ahead.

No one has publicly set out the inquiry’s procedures, composition, duration and jurisdiction, and the words with which Jalil announced its creation were eloquent proof of the political complexities that it will have to negotiate. ‘Those who wanted him killed were those who were loyal to him or had played a role under him,’ he observed. ‘His death was in their benefit.’ As Jalil doubtless knew, the argument that guilty parties can be identified by their ulterior motives is a very old rhetorical strategy. Cicero famously deployed it to deflect suspicion from the clients he was defending before Roman juries, and as that suggests, the question of who stands to gain from a crime – cui bono? – is a lot better at sowing confusion than it is at disclosing the truth. That is not to impugn Jalil, who has an impressive reputation for probity, but it does stress the need for focus. Countless people might have an interest in downplaying their associations with the ousted regime. They are so numerous, however, extending deep within the NTC itself, that investigators would do well to concentrate on the basics: evidence of intention, opportunity and action. If Gaddafi’s death was hastened by brutality, only transparent proof will allow the outlines of a conspiracy to emerge from the theories.

The investigation will doubtless leave some observers dissatisfied. Even if it identifies culpable individuals, prosecutors might well forgo bringing charges on public interest grounds – a concept as malleable in Muslim states as Western ones – especially because, popular assumptions notwithstanding, Islamic jurisprudence has historically favoured private repentance over public trials. It also seems as though the NTC, sensitive to perceptions that it is dominated by Benghazi politicians, has excluded the displaying of the corpse at Misrata from the investigators’ remit entirely. But if the inquiry is not to be a whitewash, it will have to satisfy some basic standards. It must be prepared to defend robustly its legitimacy against witnesses who think it a tool of eastern Libyans or a sop to the West. It needs to ascertain and disclose any orders that were issued in respect of captives generally, and Gaddafi in particular – and if there were none, to establish whether soldiers were given adequate guidance on what constitutes a war crime. Lastly, it has to provide a frank explanation of the cause and nature of the violence that took place at Sirte, alongside a discussion of the post-mortem report which the attorney-general has so far kept confidential. Divine justice might have an exalted place in the new Libya, but the National Transitional Council’s first test is going to be the official account of Gaddafi’s last moments – and the extent to which it convincingly explains just how he came to die.