NATO has consistently blocked any attempt to scrutinise the war crimes it committed during the ‘humanitarian intervention' in Libya

Back in January Faiz Fathi Jfara of Bani Walid asked a simple question, “I just need an answer from NATO: why did you destroy my home and kill my family?” NATO refuses to answer him.

NATO went to war in Libya to protect civilians through a U.N. mandate (Resolution 1973). Given legitimacy by the U.N. Human Rights Council and by the International Criminal Court, NATO began its ten thousand sorties. It quickly exceeded the U.N. mandate, moving for regime change using immense violence. All attempts to find a peaceful solution were blocked. The African Union's high-level panel was prevented from entering Libya as the NATO barrage began.

Several influential countries, including Russia and China, have asked for an evaluation of Resolution 1973 since late last year. They want to know if NATO exceeded its mandate.

A report by independent Arab human rights groups in January 2012 and a report by the U.N. Human Rights Council (March 2, 2012) have been largely ignored. Both show that the proposition that Muammar Qadhafi's forces were conducting genocide was grossly exaggerated, and both called for an open investigation of NATO's aerial bombardment. The U.N. report found that crimes against humanity and war crimes had been committed by the Qadhafi regime and by the rebels. It also found evidence of potential war crimes by NATO.

The saviours' kill rate

The second finding is stark. If NATO went into the conflict with its “responsibility to protect” (R2P) civilians, what was the civilian casualty rate as a result of NATO's bombardment? Would the U.N. Security Council sanction further NATO “humanitarian interventions” if the kill rate from the saviours is higher than or equals that of the violence in the first place?

When the Human Rights Council began its investigations, NATO's legal adviser Peter Olson wrote a sharp letter to the commission's chair:

“We would be concerned if ‘NATO incidents' were included in the commission's report as on a par with those which the commission may ultimately conclude did violate law or constitute crimes. We note in this regard that the commission's mandate is to discuss ‘the facts and circumstance of ... violations [of law] and ... crimes perpetrated.' We would accordingly request that, in the event the commission elects to include a discussion of NATO actions in Libya, its report clearly state that NATO did not deliberately target civilians and did not commit war crimes in Libya.”

NATO was eager to prejudge the investigation — it would not allow the investigation to take up issues of war crimes by NATO.

On March 25, The New York Times' C.J. Chivers wrote a strongly worded essay “NATO's Secrecy Stance,” which revisited a story that Mr. Chivers had written about the August 8, 2011 NATO bombardment of Majer (a village between Misrata and Tripoli). It is clear that at least 34 civilians died in that attack. It is a test case for NATO's refusal to allow any public scrutiny.

NATO claims that it has already carried out a review of this case. Mr. Chivers is right to note that this raises an issue fundamental to democratic societies, namely, civilian control over the military. If the public and the political authorities are not allowed access to the evidence and provide oversight over the NATO command, the idea of civilian control of the military is violated.

Five days later, The New York Times editorial (“NATO's Duty”) followed Mr. Chivers, noting that NATO “has shown little interest in investigating credible independent claims of civilian fatalities.” This is strong language from an editorial board that has otherwise been quite comfortable with the idea of NATO's “humanitarian interventions.”

The next day (March 31), NATO's spokesperson Oana Langescu responded that NATO has already done its investigation, and if the Libyan authorities decide to open an inquiry then “NATO will cooperate.” There is no indication that the threadbare Libyan government is going to question its saviours. On May 2, the Libyan government passed Law no. 38 which gives blanket amnesty to the rebels. Such a protection implicitly extends to NATO. Seven thousand pro-Qadhafi detainees sit in Libyan prisons. They have not been afforded habeas corpus. Among them is Saif al-Islam. An International Criminal Court warrant languishes. The U.S. war crimes chief, Steven Rapp, joined the Libyans in refusing the ICC request for Qadhafi. “We certainly would like to see the Libyans provide a fair and appropriate justice at the national level,” he said on June 6. When the ICC was created in 1998, both the U.S. and Qadhafi's Libya opposed it. During the rush to war, the ICC was very useful to build propaganda against the Qadhafi regime. Now it is to be set aside. Libya shows how “human rights” is used as a pretext for war making and is not taken seriously when conflict ends.

Failure to acknowledge

A Human Rights Watch report entitled Unacknowledged Deaths: Civilian Casualties in NATO's Air Campaign in Libya released on May 14 revisits the theme of an investigation. When HRW was doing its work, it wrote to NATO requesting answers to some of its questions. NATO's Richard Froh (Deputy Secretary General of Operations) responded on March 1 that NATO had already answered the U.N.'s Commission of Inquiry (which it actually had not) and that HRW should see those “detailed comments to the Commission, which we understand will be published in full as part of that report. We encourage you to consider these comments when drafting your own report.” It was a brush off. Because NATO refused to cooperate, HRW could only look at eight sites (out of ten thousand sorties). From this limited sample, HRW verified the killing of 72 civilians, with half of them under the age of 18. NATO's silence led HRW to conclude, “NATO has failed to acknowledge these casualties or to examine how and why they occurred.”

The scandal here is that NATO, a military alliance, refuses any civilian oversight of its actions. It operated under a U.N. mandate and yet refuses to allow a U.N. evaluation of its actions. NATO, in other words, operates as a rogue military entity, outside the bounds of the prejudices of democratic society. The various human rights reports simply underlie the necessity of a formal and independent evaluation of NATO's actions in Libya.

(Vijay Prashad, who teaches at Trinity College, Hartford, CT, is the author of Arab Spring, Libyan Winter — out this month from LeftWord Books, Delhi — and a frequent contributor to Frontline .)