International Criminal Court Prosecutor, Outlining Vision, Calls for New Era of Engagement with Security Council to End Atrocity Crimes in Libya
In his first appearance in the Security Council today, the new Prosecutor of the International Criminal Court called for a more robust partnership between the two bodies towards ending impunity for atrocity crimes committed in Libya and elsewhere.
Karim Khan, who took office five months ago, stressed that the Rome Statute, which created the Court, is not the property of Italy, or of Europe or the West. “The values of the Rome Statute belong to humankind everywhere,” he said. Narrowing impunity for genocide, crimes against humanity and war crimes should be a cause that brings all closer together, he said, adding that the success of the Court’s mandate requires support from States, non-State parties and the Council, as well as international and regional organizations. He pledged to work for broader inclusivity.
He said he will give priority to cases referred to the Prosecutor’s Office by the Council, such as the situation in Libya. He called for a convergence between the work of the Council and the Rome Statute that permits no haven for atrocity crimes. A paradigm shift is needed to foster a new era of engagement between the two bodies. Drawing attention to the principle of complementarity on the issue of jurisdiction, he urged States to “step up” as they have a national responsibility to ensure accountability.
On Libya, he said instability has prevented the Office from conducting investigations on Libyan territory, but he intends to visit the country in early 2022 to meet with State officials and other stakeholders. The Office continues to gather evidence related to alleged crimes committed during the April 2019 attack on Tripoli. It has also collected credible information about past and ongoing serious crimes allegedly committed in official and unofficial detention facilities, including unlawful detention, murder, torture, rape and other forms of sexual and gender-based violence.
The situation of migrants in Libya and the region remains deeply troubling, he said, calling for investigations into reported cases of rape and excessive use of force. Given the scale of the problem, and the lack of dedicated resources, the Office has partnered with the European Union Agency for Law Enforcement Cooperation (Europol), Italy, United Kingdom and the Netherlands — a collaboration that has led to the arrest of a suspect by the Netherlands in October in the context of national proceedings.
As that example attests, he said success should not only be measured by the number of trials and proceedings in The Hague, but by imaginative partnerships to end impunity. He asked the Council to facilitate United Nations support for at least the two cases it referred to the Office. “It will be money well spent,” he assured.
In the ensuing discussion, Mexico’s representative, Council President for November, spoke in his national capacity to stress that Libya is “at a crucial moment” with the upcoming elections. Combating impunity is a cornerstone in efforts to rebuild the social fabric. He urged Libya and other States to redouble their cooperation with the Court, including in the exercise of jurisdiction by national courts, based on the principle of complementarity.
Niger’s delegate supported the Prosecutor’s vision of forging partnerships, underscoring that those responsible for Rome Statute crimes can only be held accountable through cooperation and partnership among the Office, the Government of National Unity, States parties to the Rome Statute and the international community.
India’s delegate, pointing out that his country is not a party to the Rome Statute, argued that referring the situation in Libya to the Court did not have its intended effect. Subsequent events have only reinforced India’s view that, when cases are referred primarily for political reasons, the Court may not be best suited to serve the purpose of justice.
The Russian Federation’s delegate denounced the Court’s position on the Libyan file as “invariably selective”, placing all the blame on only one side of the conflict. The Court did not even try to investigate the illegal North Atlantic Treaty Organization (NATO) air strikes on Libya’s territory, which resulted in numerous civilian casualties. He noted with regret that Libya’s statehood has been destroyed to satisfy the ambitions of Western countries.
Ireland’s representative highlighted the lack of cooperation with the Court in the execution of arrest warrants, urging Libya to arrest and surrender Saif al‑Islam Qadhafi as a matter of urgency.
Norway’s delegate meanwhile urged the Council to uphold its responsibility to support the Court, notably by ensuring adequate resources for cases it has referred to it.
The United Kingdom’s representative echoed the Office’s view that some of the crimes committed by foreign mercenaries fall within the Court’s jurisdiction.
Rounding out the discussion, Libya’s representative underlined the sovereignty of national judicial institutions, fully capable of delivering justice with integrity and holding fair trials in accordance with national legislation. Stressing that the Court cannot replace Libya’s judicial system, he welcomed cooperation with the tribunal.
Also speaking were representatives of Viet Nam, China, Saint Vincent and the Grenadines, France, United States, Kenya, Estonia and Tunisia.
The meeting began at 3:04 p.m. and ended at 4:43 p.m.
Briefing
KARIM KHAN, Prosecutor of the International Criminal Court, presented his first report on the situation in Libya since taking office on 16 June, stating that the Court — and the Rome Statute that underpins it — can help ensure that “the tomorrows of our children are better than the yesterdays of so many of fellow mankind”. The Council’s referral of the situation in Libya to the Office of the Prosecutor is one example of its commitment to justice and accountability. There must be a convergence between the work of the Council and the Roma Statute that allows no haven for atrocity crimes. Stressing that the Rome Statute is not the property of Italy, or of Europe or the West, he said the value of the Statute belongs to humankind, everywhere. Narrowing impunity for genocide, crimes against humanity and war crimes should be an endeavour that brings all closer together. The success of the Court’s mandate depends on support from States and other stakeholders, including the Council and non-State parties. In that context, he said he seeks to work with international and regional organizations in innovative ways that lend renewed purpose to the principle of complementarity. In that context, he urged States to “step up”, as they have a national responsibility to ensure accountability.
Turning to Libya, he said he will give priority to the referral by the Council. He is undertaking a comprehensive review of the Libya file and will include the results in his next report. During the latest reporting period, the Office continued its investigations into crimes committed in Libya since 2011, however, ongoing instability has prevented it from conducting investigations on Libyan territory or from collecting evidence in situ. He said he intends to visit Libya in early 2022 to meet with State officials and other stakeholders to discuss the matters outlined in his latest report. Despite these challenges, the Office has made notable progress investigating past and ongoing crimes, and he requested greater engagement by the Council.
Outlining developments, he said the Office continues to gather evidence related to alleged crimes committed during the attack on Tripoli in April 2019. It has also collected credible information about past and ongoing serious crimes allegedly committed in official and unofficial detention facilities, including unlawful detention, murder, torture, rape and other forms of sexual and gender-based violence. The situation of migrants in Libya and the region remains deeply troubling, he said, calling for investigations into reported cases of rape and excessive use of force. Given the scale of the problem, and the lack of dedicated resources, the Office has partnered with a joint team consisting of the European Union Agency for Law Enforcement Cooperation (Europol), Italy, United Kingdom and the Netherlands — a collaboration that has led to the arrest of a suspect by the Netherlands in October in the context of national proceedings.
Noting that success should not only be measured by the number of trials and proceedings in The Hague, but by the narrowing of impunity, he asked the Council to facilitate United Nations funding for at least the two cases it referred to the Office. “It will be money well spent,” he assured. He urged all parties to comply with their international legal obligations under international humanitarian law and international human rights law, and to hold perpetrators accountable. More importantly, he said, “the victims cannot be a soundbite”. A paradigm shift in partnership is needed towards a new era of engagement between the Office and the Council.
Statements
JUAN RAMÓN DE LA FUENTE RAMÍREZ (Mexico), Council President for November, spoke in his national capacity to stress that Libya is “at a crucial moment” with the upcoming elections. Combating impunity is a cornerstone in the transition and reconstruction of the social fabric. Cooperation between Libyan authorities and the States involved remains essential in strengthening accountability. He urged Libya and other States to redouble efforts to cooperate with the Court, including in the exercise of jurisdiction by national courts, based on the principle of complementarity. Turning to crimes committed against migrants in Libya, he said both the Secretary-General’s report and that of the Prosecutor emphasize the seriousness of these crimes. He noted the Prosecutor’s intention to prioritize those situations referred to the Court by the Security Council, urging the Council to facilitate United Nations support for the expenses incurred by the Court regarding those referrals.
PHAM HAI ANH (Viet Nam) said it is imperative to advance the political process in Libya, especially through efforts to ensure the timely conduct of presidential and parliamentary elections. It is equally important that relevant parties continue to fully respect the ceasefire agreement and the Security Council arms embargo. He also called for strengthened efforts to protect civilians from the risks of mines and explosive remnants of war, both in clearance and education activities. Stressing that the State bears the primary responsibility for adhering to international humanitarian law and both preventing and suppressing serious criminal acts, such as war crimes and crimes against humanity, he said efforts to ensure accountability for such acts must be conducted in accordance with international law, including the principle of respect for State sovereignty.
DAI BING (China) said the ceasefire has been preserved for some time and preparations for elections can continue. In October, the 5+5 Joint Military Commission put in place a plan to withdraw foreign forces and mercenaries, and in November, the International Conference for Libya, held in Paris, endorsed the elections and supported the withdrawal of foreign forces. Stating that Libya has been in turmoil for more than 10 years, he urged all parties to resolve their differences over the elections through dialogue and other peaceful means. He called on all foreign forces and mercenaries to withdraw from Libya to create conditions for the political process. He also outlined China’s expectation that the Court will respect the principle of complementary jurisdiction, as stipulated in the Rome Statute, and Libya’s sovereignty. He similarly asked the Court to play a positive role in the peace process.
GARETH BYNOE (Saint Vincent and the Grenadines) said that Libya is on the precipice of a new era, with the potential to emerge from one of its darkest chapters in history. He encouraged authorities to continue advancing efforts to end impunity, protect human rights and bring justice and reparations to the victims. He maintained that circumstances in Libya are propitious to strengthen cooperation between the Government of National Unity and the International Criminal Court. Saint Vincent and the Grenadines looks forward to the Prosecutor’s visit to Libya in early 2022 to meet with authorities and enhance cooperation that would allow the Court to effectively discharge its mandate. He reiterated calls for non-State parties to subscribe to the Rome Statute, and for State and non-State parties to fully comply with their United Nations Charter obligations.
ABDOU ABARRY (Niger) said those responsible for Rome Statute crimes can only be held accountable through cooperation and partnership between the Office of the Prosecutor, the Government of National Unity, States parties to the Rome Statute and the international community as a whole. In this context, he welcomed the decrease in the number of crimes under the Rome Statute since the entry into force of the ceasefire agreement, signed on 23 October 2020, and the establishment of the Government of National Unity. He called on Libyan authorities to continue to investigate cases of torture and sexual crimes referred to in the report, as well as crimes committed in prisons and detention centers in order to bring such violations to an end, to punish their sponsors and perpetrators and deliver justice to victims. He encouraged Libya’s authorities to continue their cooperation with the Office to ensure that such crimes, as well as those involving victims of air strikes, mines, torture and abduction, are investigated and prosecuted by the competent Libyan courts. He commended the Office’s efforts to carry out fact-investigation missions to Libya, listen to witnesses and gather important documents, expressing support for the Prosecutor’s intention to visit Libya in early 2022. On human trafficking crimes against migrants and refugees mentioned in the report, he encouraged the Office to continue to strengthen cooperation, coordination and exchange of information with Libya’s authorities, Europol and other partners to ensure that perpetrators are held accountable.
BRICE FODDA (France), pointing out that the Court is the only permanent, universal international criminal jurisdiction, said it plays a crucial role in combating impunity. This is a central element of conflict resolution and reconciliation between Libyan parties. He pressed Libyan authorities to cooperate with the Court and with the United Nations Support Mission in Libya (UNSMIL) pursuant to resolution 1970 (2011). Light must be shed on atrocities — particularly those that occurred in Tarhuna and south of Tripoli — as well as on crimes against migrants, refugees and detainees. He welcomed the imposition of sanctions on Osama al Kuni Ibrahim due to serious violations of human rights, including torture. Combating impunity also depends on the political process, he added, stating that the 24 December Presidential and Parliamentary elections offer “a glimmer of hope for lasting peace”.
GERALDINE BYRNE NASON (Ireland) said Libya has seen several hard-won achievements since the October ceasefire agreement, including the inauguration of the interim Government of National Unity in March. These events are an opportunity to renew the Court’s relationship with Libya, its relevant national authorities and stakeholders. She welcomed the Prosecutor’s intention to prioritize engagement with the Libyan authorities, as well as steps taken by the Government of National Unity to bring about a process of national reconciliation, and work with Libyan authorities to strengthen transitional justice institutions. However, she expressed concern over reports of serious violations outlined by the Secretary-General in September about the situation of migrants, and reports that certain State officials affiliated with the Directorate for Combatting Illegal Migration have allegedly committed serious human rights violations. Moreover, the continued lack of cooperation with the Court in the execution of arrest warrants is concerning, she said, urging Libya to arrest and surrender Saif al-Islam Qadhafi as a matter of urgency. She underscored the need for consistent follow-up from the Council for cases to the Court, including budgetary support, stressing that non-cooperation by States in relation to situations already referred by the Council, including the situation in Libya, requires a substantive response.
JEFFREY DE LAURENTIS (United States), said that, regarding the International Criminal Court’s ongoing investigation into Libya, the situation in the country is best addressed by accountability, but the precarious nature of human rights there makes the work difficult. Numerous armed groups have faced allegations of arbitrary killings, torture and gender-based violence. There have been disturbing reports of violence in Libyan prisons, with detainees subject to torture, while their families are denied visitation rights. The unearthing of the mass graves in Tarhuna demands ongoing attention and a concerted international response, as well, he said, acknowledging the work done to exhume the mass graves and gather evidence. He welcomed the report of the Independent Fact-Finding Mission on Libya. The Fact-Finding Mission, he recalled, was established by the Human Rights Council in June 2020 to document alleged violations and abuses of international human rights law and humanitarian law by all parties in Libya since 2016 and represents a positive step towards accountability.
ODD-INGE KVALHEIM (Norway) said free, fair and inclusive elections are essential for Libya to move forward and avoid further destabilization. He welcomed the Prosecutor’s prioritization of situations referred by the Security Council while noting that addressing impunity is critical to stability, reconciliation and sustainable peace in Libya. As resolution 1970 (2011) mandates that Libyan authorities fully cooperate with the Court, he urged Libya — and the international community — to support the timely arrest and surrender of suspects. He went on to say that prevention of, and response to, conflict-related sexual and gender-based violence must be a priority, that sanctions should be used where relevant and appropriate and that there must be reinforced efforts to combat violence against migrants. Further, the Council must uphold its responsibility to support the Court, especially in cases it has referred to it, notably by ensuring adequate resources for this purpose.
GENNADY V. KUZMIN (Russian Federation) said the Prosecutor's Office has spoken openly about the lack of substantial progress, a point that his delegation has reiterated for a decade. Finally, the Court has stopped feigning activity and recognized the obvious. He denounced the Court’s position on the Libyan file as “invariably selective”, placing all the blame on only one side of the conflict. The Court did not even try to investigate the illegal North Atlantic Treaty Organization (NATO) air strikes on Libyan territory, which resulted in numerous civilian casualties. He noted with regret that Libya’s statehood has been destroyed to satisfy the ambitions of Western countries. The once-prosperous country still lies in ruins and must be rebuilt literally “bit by bit”. With general elections scheduled for 24 December, he called on all parties to exercise maximum restraint to allow the long-suffering Libyan people to exercise their legitimate right to elect and be elected.
MARTIN KIMANI (Kenya) said that, in exercising their right to select their leaders and determine how they want to be governed, Libyans will manifest their desire for strong national institutions and a system that grants people the confidence of peace and prosperity. The effectiveness of national judicial and prosecutorial institutions is critical to the exercise of sovereignty, he said, itself the basis for the United Nations membership from which the Court’s engagement with Libya is drawn. He strongly supported Libya’s national reconciliation process and encouraged its continued implementation under the National Reconciliation Commission. On the issue of migration, he said that, if serious efforts are not made to address the push factors, migrants will continue to make their perilous journeys. He called on all involved to desist from interceptions at sea and the return of migrants to Libyan ports. He reiterated Kenya’s call to respect Libya’s territorial integrity and sovereignty, including through the departure of foreign fighters and mercenaries, and the end of foreign interference.
CHANAKA LIAM WICKREMASINGHE (United Kingdom) welcomed the renewal of the mandate of the Independent Fact-Finding Mission on Libya and called on the Libyan authorities to facilitate unfettered access for their investigations. He called on the Government of National Unity to investigate crimes committed in detention facilities and address violence against women and girls in such centres. He welcomed the Joint Military Committee Action Plan for the withdrawal of all foreign forces and mercenaries from Libyan territory and echoed the Office’s view that some of the crimes committed by these mercenaries fall within the Court’s jurisdiction. The discovery of yet more graves in Tarhuna is of much concern; all actions must be taken to hold to account all those responsible for atrocity crimes. The United Kingdom is lending psychosocial and health‑care support to migrants, refugees and asylum seekers, he added. He also stressed that States parties to the Rome Statute, as well as non-States parties, should cooperate with regard to the arrest and surrender of individuals subject to arrest warrants, in order to help close the impunity gap.
SVEN JÜRGENSON (Estonia) expressed concern about reports of continued violence and crimes against migrants and refugees. He called for the departure of all foreign fighters and mercenaries from Libyan territory as a first step towards the full and timely implementation of the ceasefire agreement, stressing the vital nature of holding free, fair, inclusive and credible elections in December. Full cooperation by the Government of National Unity and all other stakeholders with the Office of the Prosecutor is essential to ensure accountability for Rome Statute crimes, he said, stressing the need to ensure that the Court has the budgetary resources to fulfil its mandate. He recalled that the execution of arrest warrants is essential to ensure justice for victims, deploring that there have been no tangible results in the execution of warrants in the Libyan case.
MAYANK SINGH (India), pointing out that his country is not party to the Rome Statute, said that referring the situation in Libya to the Court did not have its intended effect. Subsequent events have only reinforced India’s view that, when cases are referred to the Court primarily for political reasons, “the [International Criminal Court] mechanism may not be best suited to serve the purpose of justice”. He stressed the need to hold presidential and parliamentary elections as planned on 24 December in a free, fair, inclusive and credible manner. Additionally, Libyan parties’ call for the withdrawal of foreign forces and mercenaries must be honoured, and terrorist groups and their affiliates must not be allowed to operate unchallenged in Libya. The continued presence of Islamic State in Iraq and the Levant (ISIL/Da’esh) and its activities in Libya is of serious concern, threatening a potential cascading effect throughout the Sahel region. It is unfortunate that this issue is not drawing the attention it deserves, he added.
ALI CHERIF (Tunisia) voiced support for Libya and all the efforts towards a seamless political transition, which will promote security and stability and translate the will and aspirations of the Libyan people. The International Criminal Court is exercising its impartial jurisdiction in that country, he said, welcoming the regular briefings of the Prosecutor to the Security Council. He noted with appreciation the work of the Prosecutor in Libya despite the COVID-19 pandemic restrictions on the ground and commended coordination with the Libyan authorities and other stakeholders in documenting grave violations of international human rights and humanitarian law. He also expressed concern over the discovery of new mass graves in Tarhuna, calling them a reminder for the need to bring about peace in Libya, including by ensuring the full withdrawal of all foreign fighters. Accountability will best be reached using a dialogue-based approach, he stressed, welcoming the renewed vision of the Prosecutor for addressing the dossier of Libya by stressing the complementarity principles between the International Criminal Court and the national authorities of Libya.
TAHER M. EL-SONNI (Libya) reiterated the determination of the Libyan people to lay the foundation for a modern democratic society, despite their difficult circumstances, and to demand accountability for all crimes committed. He underlined the sovereignty of national judicial institutions, fully capable of delivering justice with integrity and holding fair trials, in accordance with national legislation. Stressing that the Court cannot replace Libya’s judicial system, but that its cooperation is welcome, he said that on 16 November, authorities discovered two new mass graves near the town of Tarhouna. The remains have not yet been identified, as forensic operations are under way.
Welcoming the Court’s cooperation in relation to other mass graves and the identification of remains, he said Libya is awaiting the findings of the recent International Criminal Court mission to the country, as well as those of the Human Rights Council Fact-Finding Mission, including in cases involving criminals still at large. Some criminals are taking advantage of the circumstances, but their crimes are not time-barred, he explained. More broadly, he said Libyan authorities are ensuring the protection of irregular migrants against any abuses or human rights violations that they may have experienced during the current crisis. He rejected the conditions imposed by some States that want these migrants to acquire Libyan nationality, reaffirming Libya’s sovereignty and right to self-determination.
Mr. KHAN, making additional remarks, said he listened carefully to Council members and the representative of Libya. Two or three members mentioned ISIL, which poses a threat to international peace and security. He also noted violent ideologies that States are encountering in the Sahel. The points raised are well taken. He will look into them and will address them in his next report.