Did the Thuwar Persecute and Commit Genocide Against the Tawerghans?

by Kevin Jon Heller

As I noted last week, I have just finished a long chapter critically assessing the work of the Human Rights Council-created International Commission of Inquiry on Libya (COI).  My basic conclusion is that although the COI generally did an excellent job, particularly in terms of its fact-finding methodology, it seems clear that it was less interested in holding the rebels — the thuwar — accountable for serious violations of international law than the Qadhafi government.  I thought readers who don’t have the time to read the entire chapters might be interested in what I consider the COI’s most serious oversight: its failure to consider whether the Misratan thuwar‘s treatment of the inhabitants of Tawergha, a city that Qadhafi forces used as a base for military operations against Misrata, qualifies either as the crime against humanity of persecution or as genocide.  I think a strong case can be made for both.

Before getting to persecution and genocide, it is important to note that the COI condemned the Misratan thuwar‘s attacks on the Tawerghans in no uncertain terms.  Here are a couple of illustrative paragraphs from the COI’s final report:

485. The Commission finds that the Misrata thuwar targeted the Tawerghan community in a widespread and systematic manner.

486. As detailed above, the Commission finds that Misrata thuwar have extra-judicially executed, otherwise unlawfully killed and tortured to death Tawerghans during Phase II and III of events in Libya. The Commission found that Misrata thuwar have arbitrarily arrested Tawerghans in locations across Libya, including but not limited to Tawergha, Al Khums, Tripoli and Sirte; that, in the majority of cases, they have transported them to Misrata, where most are held in various detention centres; that some of these arrests have been accompanied by extortion and looting.  The Commission found that Misrata thuwar tortured Tawerghan men on multiple occasions and subjected them to cruel, inhuman or degrading treatment.

487. The Commission finds that, in respect of Tawergha itself, the Misrata thuwar have looted and destroyed properties during the period of time that hostilities were ongoing. It also found that the continuing destruction of Tawergha in the post-conflict period has been done with the intent of making Tawergha uninhabitable and so preventing the return of displaced Tawerghans.

488. The instances of cruel treatment and pillaging which occurred during the hostilities constitute a war crime. Where they have continued since, they violate international human rights law.  The torture and killing committed against the Tawerghans by the Misrata thuwar, and other Misratans, would each individually, given the widespread and systematic manner in which they have occurred here, be capable of constituting a crime against humanity and the facts indicate crimes against humanity have taken place.

Those paragraphs, however, simply accentuate the COI’s failure to consider persecution and genocide. The Rome Statute defines the crime against humanity of persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”; that deprivation must occur in the context of other war crimes or crimes against humanity.  As paragraphs 485-88 indicate, the COI concluded that the Misratan thuwar committed a variety of war crimes and crimes against humanity against the Tawerghans. All of those underlying crimes were persecutorial, therefore, insofar as they were committed “by reason of the identity of the group or collectivity” — and there is little question that the Tawerghans were targeted because of their identity.  As the final report notes, the word “Tawergha” was crossed off of road signs in the town and pro-Qadhafi graffiti was replaced with slogans like “the brigade for purging slaves, black skin” (para. 403); thuwar soldiers described arrested Tawerghans as “you blacks, you animals” (para. 426); and a thuwar commander even boasted to a reporter that “Tawergha no longer exists” (para. 448).  Why, then, did the COI not even consider whether the Tawergha were the victims of persecution — especially as the final report itself notes the essential elements of the crime (para. 385)?

The COI’s failure to consider whether the Misratan thuwar‘s treatment of the Tawerghans qualifies as genocide — certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” — is even more troubling. To begin with, there is little question that Tawerghans qualify as a racial group both objectively and subjectively. Objectively, the COI notes that “Misrata’s residents are predominantly Arab while Tawerghans are black descendants of slaves” (para. 391).  Subjectively, as indicated by the graffiti and comments quoted above, the Misratan thuwar perceived the Tawerghans as racially black. Indeed, the racist language used by the thuwar – “slaves,” “blacks,” “animals” – is eerily reminiscent of how the “Arab” supporters of the Sudanese government described the “African” Fur, Masalit, and Zaghawa tribes in Darfur. The COI also found, as noted earlier, that the Misratan thuwar murdered and tortured Tawerghans – acts that easily satisfy genocide’s actus reus.

The critical question, then, is whether the Misratan thuwar murdered and tortured individual Tawerghans “with intent to destroy, in whole or in part,” the Tawerghans “as such.”  Proving specific intent is almost always the most difficult aspect of a genocide prosecution.  Nevertheless, many of the COI’s factual findings support the existence of genocidal intent among the Misratan thuwar. In addition to the arguably genocidal comments quoted above – “purging slaves, black skin”; “Tawergha
no longer exists” – the COI quotes one thuwar as saying that the Tawerghans deserved “to be wiped off the face of the planet.”  Moreover, the COI found that, after forcibly displacing the Tawerghans — Tawergha is now a ghost town — the Misratan thuwar then repeatedly attacked their IDP camps in Al Jufrah, Benghazi, and Aidabiya (paras. 439-41).  International tribunals have often inferred the specific intent to commit genocide from such targeted attacks.

None of this evidence, of course, proves beyond a reasonable doubt that the Tawerghans were the victims of genocide. But it does seem more likely than not, which was the standard of proof applied by the COI. At the very least, the COI should have made a statement in its final report similar to the one offered by the Darfur Commission:

One should not rule out the possibility that in some instances single individuals, including Government officials, may entertain a genocidal intent, or in other words, attack the victims with the specific intent of annihilating, in part, a group perceived as a hostile ethnic group. If any single individual, including Governmental officials, has such intent, it would be for a competent court to make such a determination on a case by case basis.

Such a statement would not have been welcomed by the new Libyan government, which has consistently denied that the thuwar mistreated the Tawerghans. But it would have had a solid evidentiary foundation — and it would have sent a powerful message that the international community will not ignore the thuwar‘s crimes simply because the Qadhafi government they overthrew was worse.

http://opiniojuris.org/2012/08/13/did-the-misratan-thuwar-persecute-and-commit-genocide-against-the-tawerghans/

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