Despite Myriad Challenges, Crucial Work of Fighting Impunity Continues in Libya, International Criminal Court Prosecutor Tells Security Council
Detailing two additional arrest warrants for grave crimes in Libya, the Chief Prosecutor of the International Criminal Court reaffirmed to the Security Council today that her Office continued its crucial work in the strife-filled country, despite challenges arising from security constraints and insufficient resources.
“Accountability for serious crimes and full respect for the rule of law are key factors which must be encouraged and supported if Libya is to achieve peace, security and stability,” said Fatou Bensouda, presenting her fourteenth report on the situation to the 15-member organ.
The Prosecutor’s Office continued to receive credible information of grave crimes allegedly perpetrated around the country, she continued. Most recently, it had been granted a warrant of arrest for Mahmoud Mustafa Busayf al-Werfalli, a commander in a special forces unit of the Libyan National Army. The charge was responsibility for war crimes in relation to seven executions that resulted in the murder of 33 people. He remained at large.
She went on to report the recently-announced arrest warrant against Al-Tuhamy Mohamed Khaled, former Head of the Internal Security Agency under Muammar Qadhafi, for crimes committed during the events of 2011. Mr. Khaled was also at large. The Office was continuing to investigate him and others associated with the 2011 events, including Saif al-Islam Qadhafi, and was devising strategies to facilitate the execution of outstanding warrants. She stressed that irrespective of any domestic investigation, Libya remained under a legal obligation to immediately arrest and surrender suspects to the International Criminal Court to stand trial in Rome.
She noted with grave concern continued reports of serious violations around the country, including the execution of detained persons, kidnappings and forced disappearances, torture, prolonged detentions without legal process, rape under detention and abuse of migrants, among other serious violations. The Libyan National Army had allegedly intensified restrictions on the city of Derna, and mass graves had been found in a town east of Benghazi.
“I remind each and every combatant engaged in fighting in Libya that my Office remains seized of the situation in Libya and if their actions amount to war crimes or crimes against humanity, they can be punished”, she said, underlining the responsibility of commanders for acts by subordinates under the Rome Statute and her readiness to bring new applications for arrest warrants.
In addition to insecurity, other challenges faced by the Office included insufficient resources, she said, urging adequate funding to fulfil her mandate. Failure to ensure arrest warrants remained a major challenge, she added, reiterating the obligations that Council members, other States and non-States parties had in that regard.
Despite such challenges, “the arrest warrants announced in the last eight months should clearly demonstrate that my Office continues to be fully engaged in Libya and is determined to achieving real progress towards a culture of accountability for crimes under the Rome Statute,” she emphasized. Thanking those who had provided vital support to the Office, she urged cooperation from all stakeholders, pledging that Libya would remain a priority for her Office in 2018.
Following Ms. Bensouda’s presentation, Council Members expressed concern at the persistence of instability and reports of grave crimes in Libya, with most speakers affirming the necessity of supporting reconciliation in the country and a transition to unified a democratic Government. Most agreed that such progress was critical for rule of law to be restored and for justice to be delivered.
Many speakers also affirmed the importance of the Chief Prosecutor’s Office in those efforts through the fight against impunity, paying tribute to the Office’s work there and calling on Libyan authorities and other actors to cooperate fully in the arrest and surrender of suspects.
However, the Russian Federation’s representative said that the only effective way to address issues of law and justice was to accelerate progress towards the country’s reunification. He argued that the International Criminal Court had been selective in its targets, without having brought cases against rebel factions. Nor, he pointed out, had it dealt strongly with terrorists. The problem of migrants clearly included international organized crime and actors, of which he awaited investigative developments.
Libya’s representative also prioritized his country’s reunification as a means to restore rule of law. In regard to crimes against migrants, however, he argued that any attempt to centralize the problem in Libya was misguided as it was a country of transit, not a country of origin or destination. Too little had been done to combat criminal networks in those latter countries or address the role of international criminal networks and armed groups.
He stressed that, in fulfilling their primary obligation to provide justice in Libya, the national authorities did not mean to show disrespect to the International Criminal Court’s work and its complementary role in the national context. Greater integration of efforts by the national courts and the Prosecutor’s Office had indeed been sought.
Delays in that area and in investigations and prosecutions were due to the security situation, he went on to say. For that reason, support for national efforts to bring about a peaceful transition to a unified, democratic country and to keep weapons from flowing to non-State groups was critical.
Also speaking were representatives of the United Kingdom, Egypt, United States, France, Uruguay, Senegal, Kazakhstan, Japan, Sweden, China, Ethiopia, Ukraine, Bolivia and Italy.
The meeting began at 10:04 a.m. and ended at 11:42 a.m.
Briefing
FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, presenting her fourteenth report on Libya to the Security Council, observed with regret that the country’s security situation remained a matter of great concern, with the proliferation of armed groups, the continued, though lessened, activity of Islamic State in Iraq and the Levant (ISIS/ISIL), the humanitarian crisis created by Libya being the key transit point for hundreds of thousands of migrants and the ongoing struggle for political power in many parts of the country. At the same time she recognized the efforts of numerous actors to ameliorate the situation. The re-establishment of the rule of law, the protection of human rights and the need to combat impunity must form part of the process that would lead to a sustainable political settlement in Libya.
“Justice is an important component of sustainable peace,” she stressed, adding that “accountability for serious crimes and full respect for the rule of law are key factors which must be encouraged and supported if Libya is to achieve peace, security and stability.” Her Office was striving to do its part. Since her last report before the Council six months ago, it had made substantial progress in the investigations of alleged crimes.
She continued to receive credible information of grave crimes allegedly perpetrated in Benghazi and elsewhere, she noted. On 1 August, she had applied for a warrant of arrest for Mahmoud Mustafa Busayf al-Werfalli, a commander in a Special Forces unit of the Libyan National Army. On 15 August, Pre-Trial Chamber I of the Court granted the warrant. The charge was responsibility for war crimes in relation to seven executions that resulted in the murder of 33 people, which were filmed and posted to social media. Describing her interactions with officials in securing the arrest of Mr. Al-Werfalli, she reported that he remained at large. She stressed that, irrespective of any domestic investigation, Libya remained under a legal obligation to immediately arrest and surrender him to the International Criminal Court to stand trial in Rome.
She went on to say that in April 2017, the Court had made public an arrest warrant against Al-Tuhamy Mohamed Khaled, former Head of the Internal Security Agency under Muammar Qadhafi, who was alleged to have committed crimes against humanity and war crimes in relation to the events of 2011. The Office was continuing to investigate him and others associated with the 2011 events, including Saif al-Islam Qadhafi, and was devising strategies to facilitate the execution of outstanding warrants. Expressing appreciation for support of Council members, she renewed the call for all actors to cooperate with the Court in that regard. As well, her Office continued to monitor the Libyan proceedings in relation to the pending appeal of Abdullah Al-Senussi before the Libyan Supreme Court.
Amongst the clashes between armed groups, the Libyan National Army, activity of ISIL, and other violence and displacement in Libya, she noted with grave concern reports of unlawful killing, including the execution of detained persons, kidnappings and forced disappearances, torture, prolonged detentions without legal process, rape under detention and abuse of migrants, among other serious violations. The National Army had allegedly intensified restrictions on the city of Derna and had arrested hundreds trying to leave the city. She joined others in condemning recent airstrikes there that had reportedly killed civilians.
In addition, she said that 36 male corpses had been found in a town east of Benghazi showing signs of restraint and torture. “I remind each and every combatant engaged in fighting in Libya that my Office remains seized of the situation in Libya and if their actions amount to war crimes or crimes against humanity, they can be punished”, she said, underlining the responsibility of commanders for acts by subordinates under the Rome Statute of the International Criminal Court and her readiness to bring new applications for arrest warrants.
Crimes against migrants continued to preoccupy her Office which, depending on facts in each case, might fall under the jurisdiction of the Court, she said. She would work with Libya and other States and organizations on the issue where appropriate. Such collaborative efforts enhanced coordination of investigation and prosecutorial strategies that were aimed at closing the impunity gap, not only for Rome Statute crimes, but also for other transnational and organized criminal activities falling outside her mandate, she emphasized.
In addition to insecurity, challenges faced by her office included insufficient resources, she pointed out, urging adequate funding to fulfil her mandate. Failure to ensure arrest warrants remained a major challenge, she added, reiterating the obligations that Council members, other States and non-States parties had in that regard. Despite such challenges, “the arrest warrants announced in the last eight months should clearly demonstrate that my Office continues to be fully engaged in Libya and is determined to achieving real progress towards a culture of accountability for crimes under the Rome Statute.” Thanking those who had provided vital support to the Office, she urged cooperation from the entire international community where appropriate. Libya would remain a priority in 2018, she pledged.
Statements
Ms. DICKSON (United Kingdom) said the situation in Libya was a matter of concern, with humanitarian violations continuing, including against migrants. Those suspected of executions and torture must be investigated. Reports of extrajudicial killings and clashes were disturbing. She also expressed support for Libya in the fight against terrorism. The relevant rules of international law must be applied. The judicial system there must be strengthened, she said, adding her support to the request for all States to facilitate the arrest of Mr. Qadhafi and Mr. Khalid and hand them over to the Court. She welcomed the willingness of the Libyan National Army to investigate Mr. Al-Werfalli. As the Office was investigating criminal acts against migrants, she urged all to cooperate with the Court, as alleged perpetrators of those crimes should be held accountable. All sides must reach a political solution and all parties should engage with the Secretary-General’s Special Representative in that regard.
AMR ABDELLATIF ABOULATTA (Egypt) commended efforts of the Court to end impunity in Libya. However, the Court could not declare the case against Mr. Al‑Werfalli admissible if he was to be prosecuted in his own country. In regard to Mr. Qadhafi, it was necessary to support the Government to make it possible to fulfil all its obligations to the Court. However, the situation in the country was difficult. He welcomed any assistance to the Prosecutor to enable her to carry out her mandate. Noting that his country had requested that the Office prioritize verification of all information received, he stressed that such information must stem from credible sources. Furthermore, the Court must remain seized of all cases, including crimes perpetrated by terrorist organizations, which received finances and weapons from some States. The international community must deliver support to the Libyan Government to assist it to fight the crimes in its country. Justice must be restored and terrorists must be prosecuted.
MICHELE J. SISON (United States) called on all actors to facilitate the arrest of Mr. Qadhafi and Mr. Khalid, saying that all responsible for crimes in the 2011 revolution must be held to account. The country was still not free from acts of violence and there must be respect for human rights and international humanitarian law. Political reconciliation was key to end the violence, she said, welcoming the steps taken in September that were in line with the National Action Plan. She encouraged all parties to support the United Nations political process. Unlawful killings in Benghazi must be investigated by authorities on the ground. She expressed concern that Mr. Al-Werfalli had carried out additional killings, in spite of investigations against him, and had returned to active duty. Turning to Afghanistan, she said any investigation by the International Criminal Court against United States personnel was unjustified. The United States had a robust national system, which was the best in the world, to address those issues, she said, stressing that the Court had no jurisdiction over United States personnel.
ANNE GUEGUEN (France) stressed the importance of the Court’s investigations against those responsible for serious crimes and acknowledged that the Office of the Prosecutor was working under difficult circumstances. All efforts must focus on the United Nations mediation efforts. Continuing investigations through the Prosecutor required cooperation of all stakeholders, including those in Libya. Taking note of the warrant against Mr. Al-Werfalli, she called on the Libyan National Army to surrender him to the Libyan authorities as soon as possible so he could be handed over to the Court. She also called for cooperation to hand over Mr. Qadhafi and Mr. Khalid. She welcomed the Office’s desire to conduct investigations of crimes committed against migrants, noting that the current situation in Libya pointed to the fact that impunity stoked instability.
LUIS BERMÚDEZ (Uruguay) said fighting crimes against humanity and war crimes was extremely important for his country. He therefore supported all initiatives to strengthen the effectiveness of the Rome Statute. Universal accession and support by States was required for that. The Court’s role in ensuring accountability for serious crimes must be a priority for the Council, in the effort to prevent further crimes and bring about justice for victims. In regard to Libya, he regretted the lack of progress in implementing the political agreement. The new authorities must develop rapid and effective responses to the crisis and must be supported in bringing about reconciliation and a democratic transition so that crimes could be fully investigated. He urged Libya to transfer all requested suspects to the Court as requested by the Chief Prosecutor. He also expressed concern over reports of crimes against migrants and urged that adequate financing be provided to the Court’s activities in Libya.
FODÉ SECK (Senegal) assured the Prosecutor of his country’s unwavering support to the Court’s efforts to combat impunity. He called on the Council to deliver adequate support for the Court considering the 15-member organ’s resolution and to assist in the arrest and prosecution of all individuals suspect of serious crimes by the judiciary body. Expressing deep concern over abuse of migrants and continued instability in Libya, he expressed appreciation for the accomplishments of the Prosecutor’s Office despite great challenges. Genuine political will from national and international partners was needed to bring about a peaceful transition in the country and to cooperate with the Court. He supported the efforts of the Special Envoy in that regard and urged intensified work to bring about a Libya in which rule of law presided.
KANAT TUMYSH (Kazakhstan), expressing alarm over the killings of civilians and other crimes described by the Chief Prosecutor, affirmed that a viable Government was needed in Libya, through a political process in which the country’s citizens played the leading role, with the United Nations playing a key role in support.
EVGENY T. ZAGAYNOV (Russian Federation) supported the effort of the Special Envoy to accelerate progress towards reunification of the country and called for international support without regard to external agendas. An effective Government would be able to deal with issues of crimes and justice. Unfortunately, the Court had been selective in its targets, without having brought cases against rebel factions, nor had it dealt strongly with terrorists. The problem of migrants clearly included international organized crime and actors and he awaited developments in that regard. On all issues, the assessment of his delegation had been made clear in previous briefings and that position had not changed. The only way to move from crisis to unification remained the broadest possible inter-Libyan dialogue, under the auspices of the United Nations, and with the participation and support of regional players.
JUN HASEBE (Japan), noting that his country was the Court’s largest financial contributor, said that judiciary body — which lacked its own enforcement authorities — could not function effectively or deliver justice without the cooperation of States. He expressed hope that continuing collaboration between the Office of the Prosecutor and the Libyan Prosecutor-General’s Office would soon yield results, adding that he was following developments concerning the arrest warrant for Mr. Al-Werfalli. As well, it was regrettable that Saif al-Islam Qadhafi was not yet in the Court’s custody, he said, encouraging the Libyan authorities and the international community to cooperate with the judiciary body in that regard. The ongoing violence and insecurity in Libya, including human rights violations by all sides, was making it harder for the Prosecutor’s investigation to progress. More countries, including Council members, should join the Court. As well, the Court and its States parties should strive to enhance its universality.
IRINA SCHOULGIN-NYONI (Sweden) voiced her deep concern regarding the security and humanitarian situation in Libya, where a breakdown of the rule of law had led to widespread violations of human rights and international humanitarian law by all parties to the conflict. In such circumstances, the Office of the Prosecutor played an essential role. To carry out its functions, including those requested by the Council, the Office needed full political and financial support. Stating support of the Court’s call for the Libyan authorities to immediately arrest Mr. Al-Werfalli, she voiced concern regarding the lack of information about the whereabouts of Mr. Khaled. In addition, reports of arbitrary detentions, torture, and sexual- and gender-based violence in both migration and regular detention centres, where greater international access should be granted, were alarming. She emphasized the importance of re-establishing a permanent United Nations presence in Libya, adding her agreement with the Office of the Prosecutor that certain crimes against refugees and migrants fell within the Court’s jurisdiction.
CHENG LIE (China) said his country supported all efforts that would bring stability to the Libya, but that all must respect the sovereignty and territorial integrity of that country. He urged for support of efforts to promote the National Action Plan, and expressed the hope that all parties could cooperate on the basis of the national agreement. He urged for strengthening the justice system in the country and expressed support for the Libyan peace process.
LEULESEGED TADESE ABEBE (Ethiopia) said that Libya remained a source of concern, and he condemned all attacks against civilians and civilian facilities. He said the suffering of all Libyans must stop, and, in that regard, his country supported the position of the African Union to combat impunity while respecting the sovereignty and territorial integrity of States. The capacity of Libyan State institutions should be strengthened with the objective of ensuring the rule of law. In terms of a lasting solution, he supported the continued diplomatic efforts of the Special Envoy according to the political process endorsed in the Action Plan, and he encouraged all Libyans to work together in a spirit of compromise.
YURIY VITRENKO (Ukraine), condemning the killing of 36 people whose bodies had been found in Al-Abyar, called for a full investigation on the incident. He also echoed the Prosecutor’s call to all parties of the conflict in Libya to ensure respect for human rights and international humanitarian law. Difficult security or political conditions should not be permanently used by any State for justification of its non-cooperation with the International Criminal Court. Libya must make concrete steps to facilitate the surrender of suspects to the Court. Furthermore, the international community should continue to support the Libyan Government of National Accord in its efforts to restore law and order and to combat impunity.
SACHA SERGIO LLORENTTY SOLÍZ (Bolivia) said the Court had been fulfilling its charge, given to it by the Council, since 2011. Its effective implementation required cooperation of all actors on Libya. He called on the Government of National Accord and other stakeholders to do their utmost to ensure the Office could carry out its work. All States, whether they were party to the Rome Statute or not, must carry out their responsibility to take all required actions in support of the Court. He was deeply concerned at the news of summary killings and detentions in Libya and called on all parties and armed groups to cease violence and punish those responsible. He called on the Government of National Accord to collaborate in investigating the alleged crimes of Mr. Al-Werfalli. He expressed concern at the violations of the rights of migrants. Crimes against humanity activated the Court to prosecute. Reports about possible interference with the Office’s investigations should be investigated thoroughly, he said. He invited all States that had not yet done so to ratify the Rome Statute. He added that the acts described today before the Council were the result of policies that continued to provide consequences that affected many people, not only in Libya but also in the rest of the world.
SEBASTIANO CARDI (Italy), Council President for the month of November, speaking in his national capacity, said that as President of States Parties to the Rome Statute, he was conscious of the delicate task the Prosecutor was charged with, noting she had made progress in many areas. Her activities could bring positive developments to the country as long as the Council remained united. There must be no impunity for war crimes. Perpetrators must be brought to justice and all pending arrest warrants must be executed, he said. Noting that the International Criminal Court was a Court of last resort, he said it was incumbent on domestic authorities to comply with that judiciary body. Impunity must have no space and accountability was crucial in reconciliation efforts. Concerned by reports of crimes against migrants and that the deplorable security situation had been hampering investigations in the field, he said and hoped that the Prosecutor could soon be allowed to visit Libya. Condemning recent episodes such as the bombing in Derna and the killing of 38 men, he called on all Libyans to work together in the reconciliation process. He added that the Council must adopt a more structured approach regarding international prosecutions and that justice and accountability must become an integral part of the Council’s preventive actions.
ELMAHDI S. ELMAJERBI (Libya) said that the Libyan authorities were aware of their primary responsibility in fighting impunity in their country. In exercising their prerogatives in that regard, they did not mean to show disrespect to the International Criminal Court’s work and its complementary role in the national context. Greater integration of efforts by the national courts and the Prosecutor’s Office had indeed been sought. Delays in that area and in investigations and prosecutions were due to the security situation. For that reason, support for national efforts to bring about a peaceful transition to a unified, democratic country and to keep weapons from flowing to non-State groups was critical.
In regard to crimes against migrants, he acknowledged that their plight had been noted in the Court’s report, but pointed out that insufficient attention had been paid to the problems of militias, traffickers and other criminals. Any attempt to centralize the problem in Libya was misguided as it was a country of transit, not a country of origin or destination. On that point, he asked what had been done to combat criminal networks in those latter countries. In all areas, impunity could not be combated in Libya unless national stability and unity was restored. Until that happened, there would only be more violations and more crimes.