By Ryan Goodman and Alex Whiting
The International Criminal Court very recently issued an arrest warrant for a militia leader in Libya which should catch the attention of U.S. policymakers, diplomats and prosecutors.
That is because of the possibility that his most senior commander—an American citizen by the name of Khalifa Haftar—ordered soldiers to commit war crimes.
So has General Haftar been telling his subordinates to carry out the very acts that are part of the International Court’s arrest warrant, such as summary executions?
Alex Whiting raised that prospect in a recent article at Just Security. (New ICC Arrest Warrant Indirectly Implicates Haftar, a U.S. Citizen)
Now startling video evidence of General Haftar’s potentially doing just that has emerged, we can report.
The videos of Haftar reinforce concerns about the American’s criminal exposure and his suitability as an interlocutor in any diplomatic negotiations over the future of Libya.
What’s more, if these videos help prove Haftar is personally committing war crimes, individuals who support Haftar’s military operations in the future, U.S. officials included, could also be exposed to criminal liability under international and domestic law.
Haftar, also known as Libya’s powerful “renegade General,” commands a large army beyond the reach of the state. His militia group, the Libya National Army (LNA), has gained control of the eastern part of the country but not without accusations of widespread humanitarian law violations.
The American has played havoc with attempts to broker peace and solidify support for the UN-backed government in Tripoli. Last year, the UN Secretary General’s special representative in Libya at the time, Martin Kobler, expressed his frustration openly. “I have many times sought to engage with General Haftar to encourage him to embrace dialogue. However, my repeated attempts have so far been without success,” Kobler told the UN Security Council.
Due to Haftar’s unmistakable gains on the battlefield, the United States, the government in Tripoli, and other countries have had to contend with the General–whether they like it or not.
There are some reports, and certainly fear on the part of Tripoli, that several foreign governments, including the United States, the United Kingdom, and France, are covertly supporting Haftar or at least warming up to him.
The ICC arrest warrant for Haftar’s subordinate, Mahmoud Mustafa Busayf Al-Werfalli, has now brought to the fore the question of Haftar’s personal involvement in the commission of crimes. We have found videos that appear to directly implicate Haftar in extrajudicial killings and an unlawful siege of Derna, an eastern port city in Libya.
Haftar’s statements in these videos raise a host of legal implications for him, for the army he commands, and for his international backers. What’s more, as a U.S. citizen, the General is subject to provisions of the US federal code that criminalize violations of the laws of war.
By extension, US officials who provide support to Haftar in the future may also risk criminal liability as aiders and abettors under US domestic law if it can be shown that they intentionally facilitated his crimes or, arguably, if the crimes are particularly grave, if they provided support with knowledge of those crimes.
Because the ICC continues to assert jurisdiction in Libya on the basis of a unanimously adopted UN Security Council resolution, it too will likely be examining all of the available evidence to assess if charges are warranted against Haftar.
And, the ICC theoretically could exercise criminal jurisdiction over other actors who assist Haftar, though it would be exceedingly unlikely to do so with respect to nationals from states that are not parties to the ICC like the United States.
I. Take no prisoners – On or around September 18, 2015
It is a clear war crime to summarily kill detainees, including captured fighters, without all the guarantees of a fair trial. It is also a clear war crime to order one’s soldiers to take no prisoners.
The so-called “denial of quarter” is a firmly settled part of the laws of war. The U.S. War Crimes Statute prohibits murder in a non-international armed conflict, and the Rome Statute of the ICC criminalizes both murder and a declaration that “no quarter will be given” (see Articles 8(2)(c)(i) and 8(2)(d)x)).
In this video, posted to You Tube on October 10, 2015 and purporting to be from September 18, 2015, General Haftar gives a speech to LNA fighters. Haftar is apparently seated between senior members of his armed forces. The date of the video roughly corresponds with the commencement of new offensive, termed “Operation Doom” in some reporting.
That offensive is part of a larger campaign (Operation Dignity), which Haftar launched in May 2014 to target Islamic State forces. Here is the full video of the event and speech, and here is a clip from the speech in which Haftar directs the fighters to take no prisoners:
No longer will there remain [unintelligible], and no longer will there be these residential complexes for those to stay and be fed by us (or stay and nest). No, no. All of this will end.
Frankly, all kinds of weapons are permitted for use by us. With all the resources we have at our hands, we will use them [those resources] without any hesitation.
Like I told you, you are more than them in numbers, I swear.
[Turns to the man to his left and asks, “More numbers than them or not?” Appears to get affirmation. Returns to audience.].
You exceed them in numbers. We could say three to one, or [mumbles].
So be calm, be resolute, be strong – the strength we know you for, and a determined strength when confronting them. No mercy. Give up on that story facing the opponent. Never mind consideration of bringing a prisoner here. There is no prison here. The field is the field, end of the story.
Officials reportedly close to Haftar have also apparently made similar statements regarding prisoners. For example, in another video, Beleed Al Sheikhy, identified as a spokesman for Haftar, said with regard to fighting in Ganfouda, a district of Benghazi, “who is above 14 years of age will never get out alive.” Reporting indicates that the Al Sheikhy video is from August 2016.
Related actions of LNA forces:
It appears that Haftar’s message was heard. The ICC issued its arrest warrant for Al-Werfalli, a member of the Al-Saiqa brigade of the LNA at the time of Haftar’s speech, based on “reasonable grounds to believe” that Al-Werfalli participated in or ordered the execution of 33 detainees in seven separate incidents between June 3, 2016 and July 17, 2017.
As we noted here, there have been public source reports following the announcement of Al-Werfalli’s arrest warrant that his actions were ordered by Haftar. The allegations of prisoner executions by LNA forces were also reported by Human Rights Watch, Amnesty International, and open source news media (here and here).
In response to one of the incidents emerging in late July 2017, Eric Goldstein, Middle East and North Africa deputy director for Human Rights Watch, told Reuters: “This latest mass execution, if confirmed, would be one more in a string of atrocities committed by members of the Libyan National Army forces and is yet another manifestation of how its members are taking the law into their own hands.”
II. The siege of Derna – On or around August 25, 2017
It is lawful to carry out a military siege of a city that aims to starve the opposition military force and deprive their soldiers of humanitarian supplies. The laws of war, however, prohibit starvation of civilians and depriving a civilian population of objects indispensable to its survival. The prohibition of starvation clearly implies that civilians must generally be permitted to leave a city during a siege.
The laws of war also require parties to allow humanitarian access to civilians in need, most clearly if there is no military necessity to block such relief.
Those prohibitions apply in non-international armed conflict like the civil war in Libya today. However, it is a more complicated question whether violations of those prohibitions incur criminal liability in a non-international armed conflict. As for the body of law that applies to the civil war in Libya today, neither the U.S. War Crimes Act nor the Rome Statute appear to criminalize blockades or sieges that deliberately deprive civilians of food, medicine or other humanitarian supplies, unless that conduct rose to the level of murder or extermination if an intent to kill could be established.
Nonetheless, in the video, Haftar’s instructions to his troops about the siege could be relevant to proving intent with respect to potential criminal charges regarding LNA treatment of prisoners (see above) or civilians.
General Haftar’s forces tightened their siege of Derna in early August 2017. Haftar’s speech here appears to have been made on or about August 25, 2017. It was the subject of media reports on that day and on the following day, The Libya Observer published a story on the speech. Incidentally, the speech likely occurred one day after UK Foreign Secretary Boris Johnson met with Haftar in Libya (French President Emmanuel Macronmet with Haftar the previous month). In the speech, Haftar says:
The issue of the blockade, my brothers, is not a joke; when we say a blockade, it means a blockade, [inaudible] or say things which are messed up, or he is incapable of doing so and so.
This is not acceptable to us, then someone answers him back saying a blockade is a blockade. None of that. None of that. The blockade means choking (or strangling). There is no medicine, there is no medical care, or I don’t know what, no petrol, no [cooking] oil. These issues, my brothers, we talk about them clearly. We have shut down everything until we get to a point where there is no longer a solution at all.
Related actions of LNA forces:
The LNA siege of Derna was preceded by allegedly indiscriminate LNA shelling of the city. The 2016 State Department Country Reports on Human Rights Practices noted, “In April there was extensive social media reporting of disproportionate shelling by the LNA in Derna, which caused a significant number of civilian casualties and infrastructure destruction.”
The siege tactics are not new for the LNA. The 2016 State Department report also provided information about the LNA’s siege of Garfounda, a neighborhood of Benghazi:
“According to AI [Amnesty International], under an LNA military blockade, hundreds of civilians, including Libyans and foreign nationals, remained trapped in the Ganfouda neighborhood of southwest Benghazi and suffered from a severe shortage of water, food, medical supplies, and electricity. On December 10, the LNA announced a temporary, six-hour ceasefire to allow the evacuation of civilians. Only a handful of civilians, however, were able to leave the besieged Benghazi neighborhood. The UN condemned the failure of the LNA to assure safe passage to civilians during its pledged cessation of hostilities.”
Human Rights Watch and Amnesty International also reported on the siege, including the LNA’s failure to allow safe passage of civilians out of Ganfouda and the inability of humanitarian aid to get into the area. In March 2017, Human Rights Watch sent a letter to Haftar informing him of the organization’s knowledge that “children and the elderly, have little or no access to food, clean drinking water, electricity, fuel or medical care, while enduring air strikes and shelling in their vicinity,” and urging him “to instruct forces under your command to allow humanitarian aid into Ganfouda.”
III. Legal remedies and policy levers
Where might this evidence against Haftar lead?
In the US legal system, the Human Rights and Special Prosecutions Section of the Department of Justice, which has primary responsibility to investigate and prosecution the War Crimes Statute, will likely consider whether to open a formal investigation of Haftar. The videos are especially important because US domestic law clearly criminalizes ordering the commission of war crimes, while other more indirect forms of liability for commanders is less clear.
Beyond Haftar himself, those who engage with the General — including American officials and other foreign states’ officials — will have to consider whether their conduct could be construed as aiding and abetting crimes by Haftar if they provide support to the General and his forces with knowledge of his criminal conduct.
In the international legal system, the ICC Prosecutor, who has a policy of charging those most responsible for crimes falling under the jurisdiction of the Court, will likely continue to investigate the situation in Libya to determine if the charges against Al-Werfalli should be expanded to include Haftar.
The ICC Prosecutor will likely consider whether Haftar might be directly responsible for ordering or encouraging the crimes (Article 25 of the Rome Statute), or responsible as a commander for failing to prevent or punish crimes by his subordinates of which he was aware (Article 28 of the Rome Statute). The statute of the international criminal court also includes liability of aiders and abettors, though arguably in more limited circumstances than under US domestic law and international criminal law more generally. And as we mention at the outset, it is highly unlikely that the ICC’s Prosecutor would pursue individuals who assist Haftar if those agents are nationals of a state that is not a member of the ICC treaty (such as the United States).
Although Haftar is himself a U.S. citizen, he is also a Libyan citizen, and because he is the overall commander of the LNA, there no reason to think that the ICC Prosecutor would hesitate to prosecute him if she had sufficient evidence to do so.
There are a host of other legal implications as well in the international space. For example, states may not lawfully aid or assist another state engaged in humanitarian law violations, even if those violations do not amount to criminal acts, and similar legal risks may apply to state aid and assistance to non-state armed groups.
In the diplomatic arena, policymakers will need to consider whether the mounting evidence against the LNA and Haftar disqualify him to be a participant in negotiations. In July 2017, the UN Office of the High Commissioner for Human Rights called on the LNA to suspend Al-Werfalli following videos showing his involvement in summary executions. Now with the videos of Haftar and other mounting evidence that the General is directly implicated in these kinds of actions, the UN will be pressed to consider whether to call on the American to step down.
Finally, the videos of Haftar, regardless of whether they implicate him personally, undermine the ability for him or the LNA leadership to provide assurances that they will adequately investigate their own military personnel for war crimes, as urged in an unusual joint statement by the U.S., the U.K, and France following the announcement of the Al-Werfalli arrest warrant. The renegade General has now created a visual record of wrongdoing that will be hard to erase.
Ryan Goodman is founding co-editor-in-chief of Just Security. He is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense.
Alex Whiting is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. From 2010-13, he was the Investigation Coordinator and then Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court in The Hague.