Criminal investigation

International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo is leading the investigation into possible war crimes and crimes against humanity alleged to have been instigated by Libyan government forces under orders from Gadhafi, his sons and the regime's inner circle.

Moreno-Ocampo is currently focusing his investigation into the events which happened between February 15 and February 26, the period before Libyan rebels took up arms against the regime. The ICC prosecutor has confirmed that pictures, videos and testimonies of people who fled Libya before fighting began support allegations that unarmed demonstrators were killed by security forces during the early protests.

He described the crimes against humanity he and his team were investigating as "widespread or systematic attacks against a civilian population" and that the focus of the case would be on seven specific incidents involving the alleged murder of unarmed civilians during the bloody crackdown in the early days of Libya's popular revolt.

"According to the Chief Prosecutor of the ICC, the crimes under investigations are crimes against humanity, among which is murder," G.J. Alexander Knoops, a lawyer and expert on international criminal law at the University of Utrecht, told Deutsche Welle. "At this moment it is unclear what type of evidence is in possession of the prosecutor of the ICC."

"It will be up to the prosecutor to assemble a case that he can take to court," Anthony Dworkin, a senior policy fellow working on human rights, international justice and international humanitarian law at the European Council for Foreign Relations, told Deutsche Welle. "To secure conviction at trial, he will have to prove guilt beyond a reasonable doubt."

"However, in order to persuade the Court to issue a summons or arrest warrant against a particular individual, the prosecutor only has to show that there are reasonable grounds to believe that this person committed a crime within the jurisdiction of the Court - and isn't likely to be prosecuted by the country where the crime took place."

Moreno-Ocampo announced Thursday that he would be informing the United Nations Security Council of the case's progress on May 4 and expected to be able to present a full case for possible war crimes against the Libyan regime by the end of that month.

Arrest warrants

The case would then be presented to judges at the ICC, the world's first permanent war crimes court with power to investigate crimes against humanity, war crimes and genocide, who would then decide whether or not to issue arrest warrants.

The Libyan regime's spokesman, the commander of its 32nd Brigade and the national security advisor are among those under investigation by the ICC along with a group of Gadhafi aides - including the foreign minister, the head of security and military intelligence, the head of Gadhafi's personal security and the head of the Libyan External Security Organization - who may be liable to prosecution for "not preventing, stopping or punishing these crimes."

Arrest warrants for Gadhafi himself or his sons could not be ruled out "if the trail of evidence leads there," Moreno-Ocampo said.

"In previous cases, it has seemed unlikely that leaders will face justice, but they have ended up on trial because of changes in political circumstances," Dworkin said.

"If there is a change of regime then both Gadhafi and others could face trial. In theory Libya is obliged by the Security Council resolution to arrest anyone that the Court asks it to, though this is unlikely until there is a regime change or unless individuals wanted by the Court are captured by rebels."

"Gadhafi, he can not be arrested by the ICC within his own country," Knoops added. "The ICC is dependent on other states to assist in arresting individuals outside their home states. Besides, it is far too early to predict how such a case could go. It is not even sure whether there will be a trial at the ICC in this case at all."

Crimes during conflict

UN human rights investigators are expected to travel to Libya in the coming weeks to investigate potential crimes committed in the armed conflict and Moreno-Ocampo said he would wait for their report due in June before making a decision on the second case.

He added that there was already a growing body of documentation to support a second case focusing on war crimes in the period since hostilities began, with reports of civilians being killed by regime snipers and tanks in rebel-held cities along Libya's eastern coast. "All this could amount to war crimes," Moreno-Ocampo said. "Attacks on civilians are a war crime."

As well as suspected crimes committed since the popular uprising began in February, the UN working group on enforced or involuntary disappearances believes that hundreds of people who have been reported as missing may have been tortured or executed by Libyan security forces in the past few months.

The "wave of enforced disappearances" of Libyans who called for demonstrations against the regime could amount to a crime against humanity, a statement released by the UN watchdog this week said. The disappearances of a number of military personnel who refused to comply with orders to use deadly force are also being investigated.

Should the Libya regime be brought to trial on any of these counts, they can expect fair but harsh justice.

"International courts in general have regarded crimes against humanity as a serious charge and issued long prison terms in cases where people have been convicted," Dworkin concluded. "These can range from 10 years' imprisonment to life."

Author: Nick Amies

Editor: Rob Mudge