THE STATEMENTS coming out of Nato yesterday were as calibrated as the targeting system that turned one of Muammar Gadafy’s homes to rubble in Tripoli on Saturday night – and with good reason.
Attacks on Gadafy personally rather than his tanks and guns skirt the very edge of the permissible as far as international criminal law is concerned.
And with chief prosecutor of the International Criminal Court Luis Moreno-Ocampo due to deliver his first report on the Libya investigation to the United Nations later tomorrow, Nato wants to stay out of the prosecutorial crosshairs.
Contrary to reports from some commentators, seeking to kill Gadafy through drones and air strikes is not a breach of war crimes law. He is the commander of the Libyan forces bombarding civilian areas of Misurata, and as such is a target every bit as legitimate as his tanks and guns.
That is because war law seeks not to stop fighting itself – nations are free to fight as many wars as they want – but to protect non-combatants.
Thus Gadafy’s use of cluster munitions against Misurata is a de-facto war crime because the Libyan army gunnery is indiscriminate, violating the duty of care an army must show in launching its attacks.
The fact that the bombardment of the besieged town is continuing means that any part of the army carrying it out is liable under war law, reaching up to the person giving the orders, in this case Col Gadafy.
Nato was at pains yesterday to point this out, after unconfirmed reports from Tripoli claimed Gadafy’s son Saif and three grandchildren had been killed in the strike. The alliance’s legal advisers will have pointed out that, however regrettable, the death of those innocents is no violation – provided Nato can provide evidence that the house was indeed a command centre.
Gadafy has effectively put a noose around his own neck by making public pronouncements not just confirming that he controls his armed forces, but also that he has ordered them to attack the general population.
The statement that he would “show no mercy” issued before a planned attack in March on Benghazi will likely find its way into Mr Ocampo’s indictment.
Nato has clearly read its law and, just as clearly, has decided that decapitating the leadership is the way to solve what promises to be a long drawn-out struggle. It seems to have had intelligence indicating Gadafy was at the address, one of many which he is thought to use.
This does not mean Nato has a blank cheque: war law has a limit on the amount of “collateral damage” that is allowed. An air strike on a tank that also causes the death of a civilian walking past would likely be acceptable; wiping out a whole school to get that same tank would not.
The problem for the Nato lawyers is that, in the short history of international war crimes courts, no test case has yet defined the boundary between acceptable and unacceptable collateral damage.
If one Nato missile aimed at Gadafy should veer off course and strike an apartment block, or should information become scrambled leading to a non-military target being hit by mistake, prosecutors could yet take a very different view. It is this reality that will be keeping Nato’s lawyers up very late at night as they watch the latest round of airstrikes going in on Tripoli.