An American's Open Letter to the ICC in Defense of Gaddafi

American Redress of Grievances

Information and Evidence Unit
Office of the Prosecutor
Post Office Box 19519
2500 CM The Hague
The Netherlands

[email protected]

Dear ICC Members and Prosecutor Jose Luis Moreno Ocampo,

I find displeasure in having to state the obvious, and it is to the shame of the ICC that such things need to be said.  While the ICC seeks arrest warrants against Gaddafi and his son, it has failed to take action against Syria or Israel.  It is obvious to the world that the ICC is a tool of domination by the U.S. and NATO and as such refuses to take action against dominant powers or their favored tyrants.  Accordingly, it has relegated itself to merely being a means of enforcing imperial politics, justifying imperial crimes and perpetrating victor’s justice.

Gaddafi is being forced to fight a rebel force that conducts combat operations without uniforms while also having to face NATO airpower thereby making it impossible for him to differentiate between civilian and combatant without having his forces destroyed.  He is being denied the ability to discriminate between combatant and noncombatant by NATO airpower while the mass slaughter and executions have proven to be improbable fictions serving only as a pretend casus belli. 

As the rebel strength is few, I am sure the means existed, and still exists, between NATO and the U.S. to provide proper uniforms with rank and insignia.  Yet, rebel forces have been allowed to hide behind civilians and as civilians while conducting an illegal war using external forces as proxies whose main purpose is not to provide freedom but instead gaining a foothold towards the ultimate goal of controlling Libyan oil.  For the price of a single cruise missile the entire rebel force could have been outfitted with uniforms.  Accordingly, the U.S. and NATO bears some responsibility in a war in which NATO is “destroying Libya in order to save it” while holding Gaddafi responsible for opposing a small and ineffective internal enemy that cannot even conduct combat operations with sufficient enough force to be effective even while being supported by European airpower where opposing loyalist forces are being arrayed in open desert terrain. 

Additionally, Gaddafi has offered amnesty to fighters in exchange for ceasing hostilities.  However, instead of working towards peace NATO has been humiliated and so now seeks to expand the destruction of Libyan targets due to its own political and military embarrassment.  But, to continue mass death and destruction due to incompetence, hubris and the failure of understanding your limitations of the strength of your enemy is no basis to allow the continued loss of life and destruction of infrastructure.  The saving of face by NATO should not be allowed to be consideration by the ICC in its determination to issue warrants because it is the NATO attacks that have exasperated the conflict and made the conflict’s speedy resolution and impossibility.

As a prosecutor from the ICC, how can you so casually dispel such obvious hypocrisies in your decision to issue an arrest warrant?  These forces were fighting without uniforms and so are not a legally recognized fighting force according to the rules of land warfare.  Furthermore, Gadaffi has limited shelling to one single town and isolated this enemy force he now continues to pound with artillery.  Yet, when one considers the death and destruction rained down upon major population centers during WWII by Western powers to include nuclear weapons and firebombing the destruction in Misrata is comparatively  insignificant.

While the Israelis killed hundreds upon hundreds of civilians in Operation Cast Lead using white phosphorous in cities and also committing attacks on hospitals and ambulances, and other protected facilities to include U.N. schools where children were gathered, the ICC remained and remains an impotent disgrace in prosecuting past criminality or preventing future criminality.  Now, instead of seeking to stop the destruction of Libya the ICC seeks merely to enforce U.S./NATO foreign policy of regime change while the Western alliance repeatedly seeks to assassinate Gaddafi.  U.S. policy officials now talk more and more about “taking Gaddafi out” to effect regime change forgetting that using military violence for the purpose of effecting regime change is an international war crime in itself.

Gaddafi’s forces could have better confined the fighting to rebels forces, but NATO decided to illegally take sides in a civil war and support rebels that have no means or internal support to effectively prosecute a battle let alone win a war or run a state.  They would surely face a greater opposition to their rule than what Gadaffi’s government  currently faces.  If they had the power to gain rule of the country they would not need NATO blasting the infrastructure back to the Stone Age. 

While the U.S. has used the basis of 100 al Qaeda being in Afghanistan to occupy and conduct combat operations in Afghanistan with a force of over 100,000, the U.S. now is providing lethal assistance to a force that intelligence tells us is composed of more al Qaeda than what is currently serving as the rationale for continued war and occupation in Afghanistan thereby making the issuing of ICC warrants a mockery of justice for all the Muslim nations to see.

Additionally, the ICC has overlooked U.S. torture and murders and renditions of captives by the U.S. to third parties for torture and murder.  It ha failed to prosecute Kissinger or Bush while indicting Gaddafi for killing only a tiny fraction of what the U.S. killed in its invasion of Iraq for which “intelligence was fixed around the policy” and for which an international agency stated unequivocally that the manufactured casus belli did not exist.

After “liberating” Iraqis, events have proven the U.S. has no intention of leaving Iraq or Afghanistan and the war was in fact about oil. The words of Bush promising the U.S would stand down when the Iraqis stand up has proven to be an object exercise in propaganda.  If the ICC considers the loss of profits by Iran under Western domination by the Shah and how catastrophic this theft was to Iranian society suffering under the Anglo-Iranian Oil Company theft enforced through British and U.S. funded CIA bombing and murder, the ICC must be even-handed. 

With respect to the ICC issuing arrest warrants against Gaddafi, even when a state of war indisputably exists, the rules of war do not apply to all combatants. Regular land, air, and naval forces are typically governed by the rules of warfare. Irregular armed forces, such as guerrillas and other insurgents, are governed by these rules only when they carry their weapons openly, wear uniforms clearly displaying a recognizable emblem or insignia, conduct their operations in accordance with the laws of war, and are commanded by a superior who is responsible for subordinates.  Western media itself has stated the rebel forces have no centralized command and control, do not know who is in command and do not operate as a legal force.

The point of these rules is not only to distinguish combatants from noncombatants but to distinguish conventional soldiers from hired assassins, spies, and mercenaries who circumvent the customs of war in order to accomplish an end that could not be achieved by regular armed forces. Because assassins, spies, and mercenaries do not comply with the rules of war, their captors need not either. Similarly, combatants who attempt to flout the rules of war by disguising themselves in civilian clothing or enemy uniforms may be treated as ordinary criminals.  Western nations have used summary courts with immediate execution for individuals operating in such a manner. 

The rebel forces may also be treated as “enemy” or “unlawful” combatants, a kind of purgatory between civilian status and prisoner-of-war-status. In response to the September 11th Attacks in 2001, the United States launched a War on Terrorism, which included a specific military operation against the Taliban government in Afghanistan and members of the al Qaeda terrorist organization conducting operations there. During that conflict, the U.S. military captured thousands of Taliban and al Qaeda forces, hundreds of whom were allegedly not complying with the rules of war, failing to wear uniforms with insignia clearly displayed, failing to carry their weapons openly, and failing to organize themselves in units subject to a hierarchical chain of command.  As cruel as the Taliban were treated with many being executed in front of U.S. forces, does anyone deny they would have been treated even more cruel if U.S. and NATO operations and forces were being attrited under withering air power provided by other Muslim nations?

The United States transported approximately 650 of the captured combatants to Camp X-Ray at the naval base in Guantanamo Bay, Cuba, where they were held as “enemy” or “unlawful” combatants for the duration of the war against terrorism. President george w. bush issued a series of executive orders that formally denied the Guantanamo detainees prisoner-of-war-status and created military tribunals or commissions to try them for possible war crimes. During such time torture and murder occurred while the Red Cross was denied access to monitor humanitarian treatment.  Despite criticism from international observers who sought prisoner-of-war-status for the Guantanamo detainees, at least two U.S courts of appeal have allowed the president’s orders to stand, one declining to exercise jurisdiction over the matter, Al Odah v. U.S., 321 F.3d 1134 (D.C. Cir. 2003), and one denying that the petitioners had standing to challenge the detention, Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153, 1165 (9th Cir.2002). However, as of June 2003, no detainee had yet to appear before such a tribunal.

The difference between an ordinary criminal, an Enemy Combatant, and a prisoner of war is important. An ordinary criminal may be detained, prosecuted, and punished in accordance with the domestic criminal laws of the country in which the crime is committed.  Because the actions of rebel forces violate international law, espionage, sabotage, engaging in an illegal war, treason and aiding and abetting an enemy, which NATO and the U.S. surely are to the Libyan government, make the actions taken by the Libyan forces a reasonably measured response considering it is being undertaken in such an isolated geographical situation.  Such is the rationale used with success in excusing U.S crimes for the wars and operations in which it is currently engaged. 

An enemy combatant may be detained and interrogated on foreign soil while hostilities are ongoing, without the benefit of counsel, the right to file a Habeas Corpus petition, or other fundamental liberties afforded by the U.S. Constitution or international law. A conventional soldier who is captured by the enemy must be humanely treated in accordance with the international rules of war. Under these rules prisoners of war are required to give their captors only enough information for identification, such as name, rank, serial number, and date of birth. According to the rules, captors may not torture prisoners to extract information from them or subject prisoners to punishment without first complying with specific legal procedures.  Yet, we have seen that organized forces under the Taliban were tortured and criminally prosecuted such as the American Michael Lindh who was recognized as a Taliban soldier.

Under the rules of war, prisoners of war may not be punished for wrongs committed by the armed forces to which they belong, and medical and scientific experiments upon prisoners are forbidden. Captors must provide prisoners with sufficient food and beverages to maintain good health, and adequate standards of clothing, housing, sanitation, and hygiene are prescribed. To encourage accountability, captors are required to disclose the names of prisoners to the belligerent for which they were fighting when captured.  Yet, there were Iraqi generals who were tortured and murdered by U.S. forces at Abu Ghraib while the ICC not only did not prosecute, but remained conspicuously silent.  So, the question is:  How many Iraqi generals would have had to have been murdered before the ICC decided to issue arrest warrants?  Again the U.S. rationalizing it as an isolated incident for which there were hundreds of isolated incidents brought to fruition by an illegal invasion seemed enough cover for the ICC to rationalize its dereliction.

In certain cases being granted the status of prisoner of war can mean the difference between life and death. Summary execution of prisoners is expressly proscribed, as are orders to “take no prisoners”.  Western powers and their rules for war recognize that on the battlefield this is an order that is tantamount to an order for their execution. The U.S. repeatedly used designated civilian population centers as “free-fire zones” as the governing Rules of Enagement.  The rules of war place other limitations on the use of Capital Punishment and affirmatively require captors to provide sick and wounded prisoners with medical care, yet as the Wikileaks “Collateral Murder” video clearly shows, unarmed individual to include children offering medical aid to unarmed civilians were targeted by not only soldiers, but the entire military chain of command.  Again, the excuse of it being an “isolated incident” served the ICC in its dereliction in prosecution for such an atrocity. For Libya to allow opposing military forces to support such a small rebel force wuld clearly open their society to such atrocities.  It si clearly established that a government has a greater duty to its people to prevent such atrocities than it does in protecting an illegal fighting force and the tine segment of population that is supporting or tolerating it.  The U.S. as an external invader conducting illegal war used terror bombing to punish population centers in Iraq that tolerated resistance fighters, but again the ICC did nothing.

Violations of these rules, though not uncommon in the heat of battle, are deterred by the threat of Reprisal. Yet, reprisal is always met with the ICC issuing indictments against those standing against superior Western forces or political objectives. 

Prisoner exchanges, which benefit both sides, also provide belligerents with incentive for reciprocal compliance with these rules.  Yet, as in Israel, the ICC and the UN refuse to recognize the right of indigenous forces to carry out similar excesses being practiced by Western forces and tolerated by the ICC and its prosecutors.

The difference between soldier and civilian is another important distinction under the rules of war. War is fought by trained soldiers armed with guns, tanks, and an assortment of other strategic weapons that they are authorized to use for tactical advantage, both offensive and defensive. The object of war is to thoroughly defeat an enemy by destroying its armed forces, which may be accomplished in an infinite number of ways, including killing and attrition. It is anticipated that much blood will be shed during a war, regardless of its length.

Civilians, by and large, are neither trained in combat nor armed, and they are not authorized to kill except inSelf-Defense. However, civilians do have families to feed, mortgages to pay, and jobs to perform, obligations that are not suspended during times of war. Hence, the rules of war attempt to insulate civilians from many of the inconveniences, distractions, tragedies, and horrors of war to ensure some continuity of civilian life.  Yet, the West has denied Libya its own money to prosecute its war and conduct a what would be a more legal defense if provided the means through money that belongs to that nation.  By denying that nation its money the international community is ensuring the government be placed in a precarious situation of having to fight for its very existence.  It should be readily apparent to even the ICC that the first and foremost concern of any government is its continuity and survival.  As such, the attempt by NATO and the U.S. to enforce regime change through “dynamic kinetic military operations” clearly represents a war crime and is only slightly less severe than open invasion.  For it is this action that has brought the attendant evils necessitated by a government intent in maintaining a rule that is clearly tolerated by 98% of the society and openly supported by a majority of a society that is clearly a stakeholder in the government’s survival.  The U.S. and Europe have no stake in nor right to determine Libya’s government. 

What is clear is that the attendant evils to which the society would be subjected if the rebel force is allowed to succeed through rampant foreign imperial interventionism would exceed those to which its society is currently subjected.  It is the foreign intervention and a mass NATO/U.S. bombing campaign that has made the situation the unbearable mess and international embarrassment it has become. 

The ICC ought to withdraw its warrants for Gadaffi and his son and admit that the hypocrisy of the U.S. and NATO have made their issuance a political quagmire which places the ICC in the position of being relegated as noting more than an enforcement arm for Western imperial interests.  For the ICC to maintain legitimacy as an organization dedicated to international justice, as opposed to merely operating through legitimacy conferred upon a superior ability to utilize force and violence, it ought to either issue arrest warrants for U.S. and British war criminals or use the same metrics it would allow the U.S. in carrying out its political and military objectives.  The fact that the Libyan government is fighting for its very existence against and allied foreign attacker ought to serve as mitigating factors.

The issuance of warrants by the ICC could not come at a worse time and only serve to inflame a situation aggravated by foreign intervention.  When one considers the U.S. Civil War and the reverence with which the American people and its government hold Lincoln’s army’s mass murders, rape, destruction of entire cities, and retaliatory starvation of prisoners to punish the South for their inability to feed their prisoners, in comparison the Libyan civil war is a very tame undertaking, indeed.  Even to this day the U.S. government makes no apologies to its own people for the atrocities visited upon half its people in a civil war prosecuted in the name of centralized government.  In fact, to this day our government it  rationalizes, glorifies, romanticizes and celebrates the war and its utility.

In consideration of the U.S. government’s stated purpose and political objectives of seeking to militarily dominate the planet in a manner consistent with denying potential adversaries even the threat of a semblance of effective deterrence, it seems the ICC is too partial to imperial interests to serve as a mediator in establishing or enforcing international justice.  Accordingly, it should seek to de-escalate hostilities as opposed to becoming entrenched in imperial designs.

What the ICC has not considered is the ramifications for the creation of future wars as the result of Chinese or Russia interests being ignored and dismissed.  The ICC has also failed to consider the precedent being established as the justification for this intervention that can now be used as a pretext for imperial interests.  The issuance of the warrants ought to be subject to U.N. resolution with veto power being granted to Security Counsel members.  The U.S. went to war with Iraq without U.N. approval and as such engaged in an illegal war in Iraq.  Yet, the ICC stood by and never made any statement that might have made American officials reconsider their politics from the viewpoint of international law as opposed to being considered appropriate due to the U.S government’s disinformation campaign directed against the American people.

The issuance of warrant should be considered in light of the U.S. policy to engage in economic, political and military hegemony; to do otherwise causes the ICC becomes a tool of U.S. imperialism.  The U.S. would intervene in Saudi Arabia in a second if as small a force comparative to the population of Libya were to destabilize Saudi Arabia.  Imagine if rebels in Saudi Arabia sought Chinese, Russian, or Iranian support.  The world would be looking at WWIII.  What he ICC ought to be concerned with is the precedent established as opposed to shortsighted political advantage.

In lesser conflicts the ICC has stood by as Syria has slaughtered hundreds of unarmed protesters after receiving tacit approval by the U.S. who used Assad in renditions for torture and murder.  Even now Israel is meeting peaceful protests with massacres of unarmed civilians.

I believe this letter deserves reasoned ethical consideration and response and hope it will serve to pressure the ICC into reconsidering its current positions and actions in reference to the Libyan war and the need for prosecution of war criminals regardless of the power of nations.  If U.S. and British war criminals were at least indicted the ICC it would bolster its credibility and serve to foster international law and justice.  Justice should not just be for the Middle East and African nations, but must extend to Israel, the U.S. and Europe otherwise the rest of the world will be subject to the type of ruinous two-tiered justice system under which Americans currently suffer.

Sincerely,

Joseph Zrnchik, MAJ (Ret.)