Justice for Victims in Libya Impeded by States’ Failure to Execute Arrest Warrants, International Criminal Court Prosecutor Warns Security Council
The failure by States to execute arrest warrants for Libyan fugitives — including the son of former leader Muammar al-Qadhafi — is blocking efforts to ensure justice for the victims of serious crimes perpetrated during a decade of conflict and strife, the Prosecutor of the International Criminal Court told the Security Council today, as she threw a harsh spotlight on ongoing human rights violations in the North African nation’s teeming prisons.
Fatou Bensouda said that according to credible reports which have yet to be officially corroborated, two of the fugitives — Mahmoud Mustafa al-Werfalli and Al‑Tuhamy Mohamed Khaled — are reported to have died and will never face justice before the Court. Saif al-Islam Gaddafi, meanwhile, is thought to be still at large in Libya, where the Government of National Unity “must take all possible action to secure his arrest and surrender”, she told the Council, meeting via videoconference.
“Justice for victims and affected communities cannot be effectively achieved without our collective efforts towards the timely arrest and surrender of those against whom warrants of arrest have been issued by the Court,” she said. “There has been no tangible progress in securing the execution of any of these warrants. This is an obligation that falls mainly on States.”
Mr. al-Werfalli, suspected of executing 43 civilians when he was commander of Al-Saiqa Brigagde, was reportedly killed in the eastern Libyan city of Benghazi on 24 March, while Mr. Khaled, accused of torture among other serious crimes, is said to have died in Cairo, she said. Mr. Gaddafi — “a wilful fugitive from justice” — is wanted by the Court for crimes against humanity allegedly committed in Libya in 2011, the year his father’s rule came to a violent end.
“Justice delayed is justice denied,” said Ms. Bensouda, briefing the Council for the last time before her mandate ends on 15 June. “[International Criminal Court] warrants of arrest must be executed in a timely fashion.”
Updating the 15-member organ on the Court’s work in Libya, she said that, despite serious financial constraints and logistical challenges thrown up by the COVID-19 pandemic, the Libyan dossier remains a priority for her Office, which is committed to working with the Government of National Unity in Tripoli to ensure accountability for serious crimes that fall under the Court’s jurisdiction. On recent visits to Libya, members of her team have not only interviewed witnesses and received essential documents, but also inspected crime scenes in Tarhouna, south-east of Tripoli, where more than 100 bodies were recovered from mass graves. They also met survivors and relatives of young men killed and wounded in an air strike on the Al-Hadba Military College in Tripoli in January 2020, in addition to displaced persons from Benghazi.
She added that her Office continues to monitor developments in Libya as it receives information about crimes ranging from disappearances and arbitrary detention to murder, torture and sexual and gender-based violence. In particular, it has received information regarding the Mitiga Prison in Tripoli, controlled by the Special Deterrence Force, and the Gernada and Al-Kuweifiya detention facilities in eastern Libya, run by the Libyan Arab Armed Forces, formerly known as the Libyan National Army. “The scale of these alleged crimes is huge,” she said, with the United Nations Support Mission in Libya (UNSMIL) reporting that more than 8,850 people are being arbitrarily detained in Judicial Police custody in 28 prisons and another 10,000 — including women and children — in detention facilities run by militias and armed groups.
“I urge all parties to the conflict in Libya to immediately put an end to the use of detention facilities to mistreat and commit crimes against civilians and persons hors de combat”, in violation of international law and the Rome Statute that established the International Criminal Court, she said. She also urged the Government of National Unity to investigate allegations of arbitrary detention, torture, confiscation of property, and rape and other forms of sexual violence. In addition, she warned that crimes committed by mercenaries and foreign fighters on Libyan soil may fall under the Court’s jurisdiction, regardless of the nationalities of those involved, and called for intensified efforts to address impunity for serious crimes committed against migrants in Libya.
In the ensuing discussion, several Council members echoed the Prosecutor’s call for concerned States to execute the Court’s arrest warrants. They called for full implementation of the ceasefire agreed by Libyan parties in Geneva on 23 October 2020, including the departure of foreign fighters and mercenaries. They welcomed progress towards elections scheduled for December, warning, however, that instability remains a threat. Many speakers applauded the recent decision by the United States, which is not a party to the Rome Statute, to lift sanctions imposed on Court officials, including the Prosecutor.
The representative of Saint Vincent and the Grenadines said that, as a critical component of the multilateral system, the International Criminal Court remains a bastion of hope and justice and is integral to Libya’s transformation. Cooperation is a central tenet of the Court’s Rome Statute, and States parties are required to fulfil their obligations under international law. More specifically, she said, Council resolution 1970 (2011) obliges all members of the United Nations to cooperate with the Court on Libya. Welcoming cooperation between the Government of National Unity and the Court, she stressed that the international community “cannot afford to lose any momentum”. She emphasized the equally important principle of complementarity, noting that the Court’s jurisdiction is only invoked when States are unable or unwilling to prosecute those accused of committing the most serious crimes of concern to the international community. Voicing concern, in that context, that several of the Court’s arrest warrants related to Libya remain outstanding, she called on both State and non-State parties to assist in apprehending or securing the surrender of fugitives. It is also essential that the reported deaths of Mahmoud Mustafa Busayf al-Werfalli and Al-Tuhamy Mohamed Khaled are verified, she said.
The representative of the Russian Federation noted the significant progress made in Libya’s political situation, and expressed hope that the country’s new Executive Branch will be able to hold elections, set up new armed forces and deal with a range of additional challenges. Turning to the Prosecutor’s latest report, he said her office seems to be taking aim at the country’s armed forces and turning a blind eye to crimes committed by others. What is most important now is to push forward national reconciliation. “We do not think the [International Criminal Court] has a useful role to play in this process,” he stressed.
The representative of Ireland said that, a decade after the adoption of resolution 1970 (2011), not a single International Criminal Court arrest warrant has been executed with respect to the situation in Libya. “We are deeply concerned at the continued lack of cooperation with the Court,” she said, urging Member States to execute those warrants, whether they are or are not States parties to the Rome Statute. The reported deaths of two fugitives lends truth to the maxim that justice delayed is justice denied, she added, urging Libya to arrest Saif al-Islam Gaddafi and surrender him to the Court. She went on to urge all parties to comply with their obligations under international humanitarian law and international human rights law as they move towards full implementation of the ceasefire agreement.
The representative of the United States noted that President Joseph R. Biden recently lifted the sanctions his Government had previously, and inappropriately, imposed on the Prosecutor and other staff, expressing his hope that the change will help return to a time of cooperation between the Court and Washington, D.C. Voicing alarm over reports of human rights abuses and indiscriminate killings in Libya, he stressed: “We need to document these abuses and do something about them.” To that end, he expressed support for the creation of a new international fact-finding mission which must be granted free access to inspect and investigate mass graves and other potential evidence. Former senior officials of the Qadhaffi regime who are fugitives of the Court must face justice. As such, any individual, group or country providing them with refuge should alert the Court and immediately facilitate their transfer, and the Council should take long-overdue action in identifying malign actors. “Victims and survivors deserve justice, and accountability will deliver a powerful deterrent message,” he stressed, adding that external actors, including foreign fighters and mercenaries in Libya, must immediately cease their actions and withdraw from the country, and all support provided to them by outside actors must end.
The representative of India, noting that his country is not a party to the Rome Statute, said that a number of acquittals at the International Criminal Court in recent years have cast a shadow on its credibility, substantiating the view that the Court may not serve the purpose of justice when cases or situations are referred to it for political reasons. India is encouraged that the ceasefire in Libya is largely holding up and that the Government of National Unity is moving ahead with purpose, but spoilers could still hinder progress towards peace and stability. The ceasefire agreement of 23 October 2020 must be implemented in full, he said, expressing concern over foreign fighters and mercenaries, as well as violations of the arms embargo. He went on to underscore India’s traditionally close and mutually beneficial ties with Libya.
The representative of the United Kingdom urged the Government of National Unity to continue to cooperate with both the Court and the United Nations, while echoing calls for the withdrawal of all foreign forces and mercenaries from Libyan territory. Pointing out that crimes committed by such forces may fall under the Court’s auspices, he condemned all assassinations and attacks against human rights defenders and called for their swift investigation. He also sounded alarm over the reported use of violence against refugees and migrants, including torture and murder, by armed groups. The Government should take note of the Court’s report and take action, addressing violence being committed against women and girls in particular. Civilians must be protected in conflict, he stressed, noting that those responsible for crimes committed against them must be held to account. The alleged killing of Mr. al-Werfalli illustrates the continued climate of impunity, he added, calling on all countries — including both States and non-States parties to the Rome Statute — to cooperate with outstanding warrants of fugitives wanted by the Court.
The representative of Kenya said that accountability and justice in Libya must go hand in hand with responding to the suffering of vulnerable groups, whose rights must be protected. However, efforts to achieve sustainable peace and stability will remain shaky unless there is space for a truly Libyan-led and Libyan-owned peace process. All foreign fighters and mercenaries must leave Libya, the ceasefire agreement fully implemented and the arms embargo respected. She urged the Libyan people to seek local solutions through dialogue from the grass‑roots to the highest political levels. Libya should also strive to investigate and prosecute suspected grave crimes carried out within its borders, with the International Criminal Court playing a complementary role.
The representative of Tunisia voiced his hope that the recent positive developments will help improve the situation in Libya. He underscored the need for international partners to work together to support the implementation of the country’s ceasefire agreement and arms embargo, while welcoming the work of the International Criminal Court’s Chief Prosecutor and looking forward to her cooperative efforts to verify the deaths, and causes of death, of Mahmoud Mustafa Busayf al-Werfalli and Al-Tuhamy Mohamed Khaled. Efforts to ensure accountability for crimes committed in Libya must be based on constructive dialogue, he said, underscoring the urgent need to build the capacities of the new Libyan authorities.
The representative of France said that fighting impunity is key and that the Government of National Unity must cooperate fully with both the International Criminal Court and the United Nations Support Mission in Libya (UNSMIL). Access to all Libyan territory must be guaranteed to ensure independent, impartial and credible investigations, and full light must be shed on atrocities committed in Tarhouna, south-east of Tripoli. France remains deeply concerned about the non‑execution of Court arrest warrants, she said, urging all States — whether they are parties to the Rome Statute or not — to cooperate fully with the Court and its Prosecutor. Crimes committed by Islamic State in Iraq and the Levant (ISIL/Da’esh), as well as those involving migrants and refugees, must also be investigated and prosecuted. Intensified cooperation between the Court and the Libyan courts, while respecting the principle of complementarity, must be supported. Fighting impunity also depends on progress on the political front, she said, calling also for the withdrawal of foreign forces and mercenaries and for strict compliance with the arms embargo.
The representative of Norway, underscoring his country’s staunch support for the International Criminal Court, said that the ceasefire in Libya, while holding, is fragile. Norway is deeply concerned about reports of murder, forced disappearances, arbitrary detention, torture and sexual and gender-based violence. Summary sentencing and secret trials must end, and the Government must investigate and prosecute those responsible while also cooperating fully with the Court. The Libyan authorities must allow access to detention centres and other places where serious crimes may have been committed. In addition, sanctions should be used — where relevant and appropriate — to counter sexual and gender-based violence. “It is troubling and highly regrettable that the three arrest warrants issued by the Court have still not been executed,” she said, noting reports that one or two of the fugitives may now be deceased. All States must ensure that those wanted by the Court are surrendered. For its part, the Council cannot remain indifferent to the lack of cooperation reported by the Prosecutor. It must assume its responsibilities and explore every possible way to support the Court. She went on to welcome the decision by the United States to lift sanctions against Court officials.
The representative of Mexico said that the recent International Criminal Court mission to Libya should contribute to improved cooperation with national authorities, particularly in terms of collecting and preserving evidence. National investigations, together with those of the Court in accordance with the principle of complementary, are essential to prevent future atrocities. Expressing concern at the non-execution of International Criminal Court arrest warrants, he urged all involved States to redouble their cooperation with the Court in that regard. While the deaths of two fugitives have been reported, they have not been officially corroborated, which should be forthcoming. He welcomed good cooperation between the Court and UNSMIL, whose common goal is progress on accountability. He went on to call on the relevant national authorities to investigate and punish abuses involving migrants that have claimed hundreds of lives.
The representative of Estonia, reiterating his country’s unwavering support to the International Criminal Court, called on the authorities in eastern Libya to investigate the murder of human rights lawyer Hanaan al Baraasi and to bring the perpetrators to justice. He also noted that crimes committed by mercenaries and foreign fighters on Libyan territory may fall under the Court’s jurisdiction. The Government of National Unity and others must cooperate fully with the Office of the Prosecutor and ensure that investigations meet international standards. Estonia remains highly concerned that, so far, none of the International Criminal Court arrest warrants issued against three fugitives accused of serious crimes have been implemented. If any of those fugitives have died, then reliable and credible information must be conveyed to the Court, he said.
The representative of Viet Nam welcomed the positive developments in Libya’s political and security fronts since the start of 2021, describing it as crucial to “seize this window of opportunity to achieve lasting and sustainable peace”. He called on the Government of National Unity to facilitate the transitional period and make all necessary preparations for the holding of national elections, in line with the agreed road map, adding that it is equally important to fully implement the provisions of the 23 October 2020 ceasefire agreement. Welcoming UNSMIL’s role in supporting the Libyan-led and Libyan-owned ceasefire monitoring mechanism and the preparations for upcoming elections, he said the arms embargo must also continue to be strictly upheld. Meanwhile, it remains crucial to improve the country’s economic and humanitarian situation. The United Nations and global partners should continue to provide support in that regard, he said, while reiterating Viet Nam’s view that States bear the primary responsibility for the implementation of international humanitarian law, the prevention and suppression of serious criminal acts, such as war crimes, crimes against humanity and the crime of aggression.
The representative of Niger said that respect for the rule of law must be part of Libya’s national reconciliation process. Encouraging the Prosecutor to continue cooperating with the new Government of National Unity, he echoed other speakers in emphasizing that those responsible for serious crimes under international law committed in the Libyan territory must be held to account. Voicing concern about reports of human rights violations, he said not only the perpetrators, but “those who gave the orders”, are subject to investigation and prosecution. In that vein, he welcomed inquiries being carried out by staff of the International Criminal Court, which will collect and preserve important evidence. He expressed deep concern about allegations reported by UNSMIL which mention the arbitrary sentencing of civilians by Libyan authorities to long jail terms and even death sentences, stressing that all legal sentences must be handed down in public, and called for their investigation. Mercenaries and foreign armed groups must withdraw from Libya in an orderly fashion, as to avoid spillover into neighbouring countries, as was seen recently in Chad, he said.
The representative of China, Council President for May, spoke in his national capacity, emphasizing that Libya’s national reconstruction has entered a new phase. Recalling that, in recent months, the Council has sent a unified message in support of the country’s transition, he commended the United Nations and regional organizations for their enormous efforts in Libya. However, the country still has a long way to go in consolidating hard-won gains towards peace. UNSMIL should carry out its work in line with the mandate provided to it by the Council, he stressed, adding that all parties should work to advance the country’s political transition and calling for a larger role for the African Union and League of Arab States. Turning to the situation of mercenaries and foreign fighters, who are obligated to withdraw in an orderly fashion, he said China’s position on Libya and the International Criminal Court remains unchanged.
The representative of Libya, drawing attention to positive developments in his country, hoped that the international community will intensify its efforts to ensure that the elections scheduled for December will be a success. Without a doubt, the Libyan people have spared no effort to build a modern State amid exceptional circumstances as they seek to turn the page on a painful decade. In that context, and as part of the Government’s efforts to forge a spirit of tolerance and reconciliation, the Ministry of Justice recently announced concrete steps to release detainees from irregular prisons, beginning with the release of 78 prisoners, as well as an exchange of prisoners under the auspices of the 5+5 Libyan Joint Military Commission.
He reaffirmed the jurisdiction of Libyan courts to prosecute all accused persons in accordance with the country’s penal code, reflecting Libya’s sovereignty over its citizens and territory. Those courts are committed to ensuring fair and impartial trials, with the International Criminal Court assuming a complementary role, particularly in cases falling outside the State’s jurisdiction. Libya therefore hopes that all States will cooperate with its national judicial authorities and transfer those persons wanted for trial. He agreed with references in the Prosecutor’s reports to human rights violations, war crimes and crimes against humanity in some parts of Libya, adding that Tripoli is looking forward to the outcome of the investigation carried out by International Criminal Court investigators in the capital and its environs.
“Circumstances may serve some criminals for a while, but they will not escape justice,” he said, emphasizing that their actions will not be subject to the statute of limitations. Turning to the question of illegal migrants, he said that the State is doing all it can to protect and rescue them. It welcomes cooperation from specialized international humanitarian organizations, but it will not accept attempts by some countries to politicize the principle of asylum‑seeking. He requested the International Criminal Court to pursue human traffickers and their cross-border networks in Africa and Europe, and not only those who are operating inside Libya.
He then turned briefly to the situation in the Middle East to condemn the ongoing attacks on Palestinian territory by the occupying Power. The Council must take practical and effective steps to immediately stop those attacks and end a policy of double standards. The Palestinians’ cause is a just cause and their rights must be restored, together with the creation of a Palestinian State with East Jerusalem as its capital, he said.
Ms. Bensouda, taking the floor a second time, thanked Council members for their strong statements of support and expressed appreciation for the positive comments delivered by the representative of the United States regarding the revocation of sanctions imposed on Court officials. Going forward, her Office hopes to establish a new relationship with the United States, rooted in mutual respect and constructive dialogue. She went on to note the role of the United States in the birth and advancement of international criminal justice.