International Criminal Court Prosecutor Pledges to Deliver Justice against Crimes Committed in Libya, Briefing Security Council on New Investigation Strategy
Outlining a four-pronged new investigation strategy to the Security Council today, the top prosecutor of the International Criminal Court pledged his commitment to delivering justice against crimes committed in Libya.
“This situation cannot be a never-ending story,” said Karim Khan, Prosecutor of the International Criminal Court. “Justice delayed may not always be justice denied, but justice that can still be arrived at.”
Presenting the twenty-third report on the Libyan file, he said survivors and the families of victims are waiting for justice, and the report contains benchmarks for the first time to help move cases forwards.
He said the first pillar of the new approach is to prioritize the referrals made by the Council, by allocating more resources and focusing on enhancing financial investigations as well as increasing capacity in investigating sexual and gender-based crimes. The second is a commitment to empower witnesses and survivors to participate in the Office’s work. As the Hague, where the Court is based, is far from Libya, it is not possible to establish meaningful relationships with victims by engaging at arms’ length, he said, noting his Office is establishing an enhanced field presence.
The third pillar is to strengthen engagement with Libyan authorities, focusing on supporting national accountability efforts based on the principle of complementarity. He said he will visit Libya in the coming reporting period to deepen the Court’s relationships with the Libyan authorities. Highlighting the fourth pillar, he said it is to increase avenues for accountability by enhancing cooperation with third States and international and regional organizations. Stressing that he does not want his Office to be only a recipient of cooperation from relevant national authorities but a positive contributor to national accountability processes, he said this must be “a two-way street”.
In the ensuing discussion, most speakers supported his new investigative strategy, but Mr. Khan heard some pushback.
The Russian Federation’s representative said that the latest report gives rise to questions, namely the Court’s decision not to investigate crimes committed in Libya in 2011. Recalling that the events of that period led the Council to refer the Libyan case to the Court, he said that the hastily fabricated case against Muammar al-Qadhafi was used to justify unprovoked military aggression by the North Atlantic Treaty Organization (NATO) against Libya. Resolution 1973 (2011) was violated by Western countries when they treated the establishment of a no-fly zone as carte blanche to carpet-bomb the sovereign and then-prosperous country. Libya suffers today from the consequences of those actions, and the Prosecutor’s position that no one else bears responsibility for the catastrophe in that country — other than the brutally murdered Qadhafi — is “astonishingly one-sided”, he said.
Likewise, India’s representative said when the Libyan issue was referred to the Court in 2011, his country — not a party to the Rome Statute — had doubts about such a course of action. Subsequent events have, unfortunately, vindicated such doubts. It is clear from the Prosecutor’s latest and previous reports that the referral to the Court had no effect in bringing about cessation of violence or restoration of stability in the country. In fact, subsequent developments have only reinforced India’s view that when cases are referred to the Court primarily for political reasons, the mechanism may not be best suited to serve the purpose of justice.
The speaker for the United States, however, said that with reports of atrocities occurring daily in Ukraine, there is a need to uphold support for international justice mechanisms, including the Court. Rebuffing his Russian counterpart’s claims of one-sidedness, he welcomed the extensive and thoughtful stocktaking exercise conducted by the Prosecutor’s Office over the past six months and Mr. Khan’s dedication to exploring several lines of effort to meet the expectations of victims. Former senior officials of the Qadhafi regime, such as Abdullah al-Senussi and Saif al-Salaam Qadhafi — the latter of whom is subject to an arrest warrant by the Court for charges of war crimes and crimes against humanity — must face justice.
France’s delegate voiced her firm support for the Court, noting that the organ is the only permanent international criminal jurisdiction, which plays a vital role in the fight against impunity. Resolution 1970 (2011) imposes on all States, whether they are parties to the Rome Statute or not, to cooperate fully with the Court and its Prosecutor. The Prosecutor’s Office must have the resources necessary to carry out its mandate.
Libya’s representative emphasized that the Libyan people desire to establish a modern, civil State, but this will not occur without comprehensive national reconciliation, which requires justice, truth, apology, reparation, forgiveness and tolerance. Welcoming the Prosecutor’s new strategy, he expressed hope that the approach facilitates justice and combats impunity without selectivity or politicization.
On the issue of immigration, he rejected attempts by some States to export their crises to Libya and advance resettlement in violation of international law. The international community’s position on human trafficking is also puzzling as, while the focus is on Libya, this phenomenon is transnational in nature. Thus, he called on the Prosecutor’s Office to include in its strategy comprehensive investigations to uncover and prosecute these international criminals who place migrants in Libya.
Also speaking today were the representatives of Mexico, Kenya, United Arab Emirates, Ireland, Norway, Brazil, Gabon, Ghana, China, Albania and the United Kingdom.
The meeting began at 3:07 p.m. and ended at 4:42 p.m.
Briefing
KARIM KHAN, Prosecutor of the International Criminal Court, recalled that in his last briefing to the Security Council, he announced his intention to conduct a comprehensive review of the Court’s investigations to date and to present a renewed plan for action. The report under discussion today is the twenty-third on the Libyan file. “This situation cannot be a never-ending story,” he said. “Justice delayed may not always be justice denied, but justice that can still be arrived at.” Survivors and the families of victims have a legitimate expectation of justice. The present report identified benchmarks for the first time, which will help move things forwards.
Turning to the renewed investigative strategy that has four key principles, he said the first is to prioritize the referrals made by the Council, by allocating additional resources, focusing on enhancing financial investigations, and increasing capacity in investigating sexual and gender-based crimes. His team is also harnessing the power of new technologies, including artificial intelligence and machine learning, to support the transcription and translation of Arabic documentary, video and audio files. Use of advanced technology can accelerate investigations.
The second is a commitment to empower witnesses and survivors to participate in the Office’s work. The Hague is distant from Libya, he said, stressing that it is not possible to establish meaningful relationships with victims, by engaging at arms’ length. It is vital to work shoulder-to-shoulder with the affected communities and vindicate their right to participate directly in the process of justice. “We need to be more on the ground,” he said, adding that the Office is establishing an enhanced field presence, including strengthening existing witness engagement facilities.
The third is a fresh approach to engagement with Libyan authorities, focusing on supporting national accountability efforts based on the principle of complementarity, he said. Where national authorities can take forward genuine proceedings, his Office should be there to support. If they can step up, his Office will be delighted. But if Libyan authorities appear unable to carry out investigations or prosecutions of crimes under the jurisdiction of the Court, his Office will continue to do its work. In the next reporting period, he will initiate a series of high-level contacts and deepen cooperation at the working-level, to identify ways in which national efforts towards accountability for core international crimes can be strengthened. He said he will visit Libya in the coming reporting period.
The fourth is to increase avenues for accountability by enhancing cooperation with third States and international and regional organizations. The Hague is a city of last resort, he said. It is vital to explore every possible channel to get evidence to the courtroom. This renewed emphasis on cooperation and complementarity will build on the significant successes achieved through cooperation with national authorities and regional organizations, including the European Union Agency for Law Enforcement Cooperation (EUROPOL), in relation to crimes against migrants. Concrete results from this approach include arrest warrants issued in the Netherlands. He said he does not want his Office to be only a recipient of cooperation from relevant national authorities, but a positive contributor to national accountability processes. This must be “a two-way street”. To conclude, he said: “Victims are not an afterthought”, and they must be put on the centre stage.
Statements
JUAN GÓMEZ ROBLEDO VERDUZCO (Mexico), underscoring the importance of putting victims at the heart of investigations, called for closer collaboration with survivors, their families and witnesses of alleged crimes that fall under the International Criminal Court’s jurisdiction. It is also essential to strengthen cooperation with national jurisdictions, based on the principle of complementarity. Spotlighting the commission of crimes against migrants and refugees and the prevailing situation in detention centres, he pointed out that such crimes involve people in conditions of serious vulnerability and welcomed cooperation with national authorities and EUROPOL to support investigation of the same. Also noting that the political situation in Libya impacts investigative work on the ground, he called on national authorities and all relevant actors to facilitate the work of the Prosecutor’s office by providing the free and safe movement necessary to gather evidence and by complying with arrest warrants issued by the Court.
GENNADY V. KUZMIN (Russian Federation) said that the latest report gives rise to questions, namely the Court’s decision not to investigate crimes committed in Libya in 2011. Recalling that the events of that period led the Council to refer the Libyan case to the Court, he said that the hastily fabricated case against Muammar al-Qadhafi was used to justify unprovoked military aggression by the North Atlantic Treaty Organization (NATO) against Libya. Resolution 1973 (2011) was violated by Western countries when they treated the establishment of a no-fly zone as carte blanche to carpet-bomb the sovereign and then-prosperous country. Libya suffers today from the consequences of those actions, and the Prosecutor’s position that no one else bears responsibility for the catastrophe in that country — other than the brutally murdered Qadhafi — is “astonishingly one-sided”, he said. Turning to the situation on the ground, he said that only now — 10 years since NATO’s aggression — are positive developments being seen in overcoming the political crisis in the country and called on all parties not to interfere in elections.
JEFFREY DELAURENTIS (United States) said that the narrative just heard from the previous speaker is also astonishingly one-sided. His country has historically been, and will continue to be, a strong supporter of meaningful accountability and justice for the victims of atrocities through appropriate mechanisms. With reports of atrocities occurring daily in Ukraine, there is a need to uphold support for international justice mechanisms, including the Court. The United States welcomes the extensive and thoughtful stocktaking exercise conducted by the Prosecutor’s Office over the past six months, and Mr. Khan’s dedication to exploring several lines of effort to meet the expectations of victims. He called upon the Libyan authorities to do more to support and advance accountability efforts, including cooperation with the Court. Former senior officials of the Qadhafi regime, such as Abdullah al-Senussi and Saif al-Salaam Qadhafi — the latter of whom is subject to an arrest warrant by the Court for charges of war crimes and crimes against humanity — must face justice. He also called on the Government of Libya to revoke decree 286, which continues to curtail the work of civil society and impede domestic efforts to secure justice for victims and survivors.
DIARRA DIME LABILLE (France) voiced her firm support for the Court, the only permanent international criminal jurisdiction, which plays a vital role in the fight against impunity. France welcomes the attention paid by the Prosecutor to the situations referred by the Council but remains concerned about the non-execution of the arrest warrants. Resolution 1970 (2011) imposes on all States, whether they are parties to the Rome Statute or not, to cooperate fully with the Court and its Prosecutor. The Prosecutor’s Office must have the resources necessary to carry out its mandate. Safe and unhindered access to the entire Libyan territory must be guaranteed to the Prosecutor and his team, she said. The principle of complementarity remains essential to the Statute. Condemning threats and violence against judges and lawyers in Libya, she welcomed increased exchanges between the Prosecutor’s Office and the competent Libyan courts. A visit announced by the Prosecutor in the coming months will be an opportunity to consolidate this cooperation, she assured.
CATHERINE NYABOKE NYAKOE (Kenya) said that Libya retains the foremost responsibility to ensure accountability and the delivery of justice within its boundaries. Thus, while regional and international mechanisms can play a role, such cooperation and assistance must be extended within the principle of complementarity. She also called for increased support to strengthen Libya’s judiciary and capacity for investigation and prosecution. Noting that extra-regional interests in migration trends across the Mediterranean Sea into Europe result in assistance policies that are superficial and fail to address root causes, she called on the European Union and other interested parties to “earnestly address the push factors of this migration”. She went on to note the Prosecutor’s preliminary assessment of crimes against migrants and welcomed further reporting on the same.
MOHAMED ISSA ABUSHAHAB (United Arab Emirates) stressed that, to avoid escalation and further division in Libya, the 5+5 Libyan Joint Military Commission must maintain its impartiality and distance itself from current political tensions. Further, the permanent ceasefire agreement must be maintained, including the phased, gradual and balanced withdrawal of foreign forces and mercenaries from the country. Reiterating Member States’ primary responsibility to implement international law and to prevent atrocity crimes, he emphasized that compliance with the Rome Statute’s principle of complementarity requires respect for the positions of the concerned State. Achieving justice — a national sovereign prerogative — requires establishing lasting peace in Libya through supporting national efforts and building institutional capacity, he added.
MADHU SUDAN RAVINDRAN (India) said his country is not a party to the Rome Statute. When the Libyan issue was referred to the Court in 2011, India had expressed its doubts about such a course of action. Subsequent events have, unfortunately, vindicated its doubts. It is clear from the Prosecutor’s latest and previous reports that the referral to the Court had no effect in bringing about a cessation of violence or restoration of stability in the country. In fact, subsequent developments have only reinforced India’s view that when cases are referred to the Court primarily for political reasons, the mechanism may not be best suited to serve the purpose of justice. The priority right now is to ensure that elections are held at the earliest in a free, fair, inclusive and credible manner, he said, expressing hope that all parties in Libya can unite around this common purpose. The Security Council and the international community must support the Libyan people in this endeavour and ensure that terrorist groups and affiliated entities are not allowed to operate unchallenged in Libya, he said.
GERALDINE BYRNE NASON (Ireland) said resources remain a matter of concern for the Court across all situations. Where the Security Council has referred situations to the Court, this should be matched with adequate funding. Such referrals place an extra burden on the Court, including through the reporting requirement, and the Council should acknowledge as much. Ireland committed additional voluntary funding to the Court two weeks ago. Such voluntary contributions will assist with all situations before the Court and may directly benefit work being conducted in relation to the Libyan situation. She welcomed the increased emphasis on engagement with victims and survivors in the Prosecutor’s forward-looking investigative strategy, especially efforts to bring the work of the Office closer to survivors, witnesses and victims’ families. One of the challenges in this is ensuring the safety of those who wish to engage with the Court and the Prosecutor’s Office. The intention to establish an enhanced field office is a prerequisite to such further engagement, she said.
TRINE SKARBOEVIK HEIMERBACK (Norway) said her country has been a staunch supporter of the Court since its establishment. Addressing impunity is critical to sustainable peace and stability in Libya. Accountability for the most serious crimes is key. Any meaningful reconciliation will depend on holding the perpetrators of atrocities to account, she said, adding that the ongoing work of the Court is crucial in this regard. Welcoming the Prosecutor’s prioritisation of situations referred by the Security Council, she said the 15-member organ must assume its responsibility and examine every possible measure to support the Court. Not doing so undermines the credibility of the international criminal justice system.
JOÃO GENÉSIO DE ALMEIDA FILHO (Brazil) welcomed the Prosecutor’s transparent approach towards the renewed strategy for Libya, along with the emphasis given by the same to the principle of complementarity and strengthening national investigations and prosecutions. International criminal justice is a temporary solution when States with jurisdiction are unwilling or unable to investigate and prosecute the most serious crimes. He further welcomed the Prosecutor’s willingness to bring his Office closer to survivors, witnesses and families of victims, which could provide a safe, secure and stable environment for witnesses who wish to engage directly with investigators. Stressing that the United Nations should provide appropriate resources to the Court in relation to situations referred by the Council, he underscored that the current situation — where only States parties cover this cost — is neither fair nor sustainable.
MICHEL XAVIER BIANG (Gabon) stressed that combating impunity should be an imperative for all, and that the scope of justice in Libya should cover all atrocities perpetrated in that country. This will require constant international support to provide the Prosecutor with the necessary means for this sensitive mission, and the Prosecutor will need to involve international, national and regional actors — along with civil society — when they can contribute to the investigation. Noting that the military and political crises affecting Libya remain, he said that armed violence creates a climate of terror and fear that makes witnesses and victims feel threatened. Against that backdrop, he appealed to all parties in Libya to redouble efforts to find a solution to these crises as the people need justice. Close cooperation with the United Nations Support Mission in Libya (UNSMIL) is essential in this regard, he added.
SOLOMON KORBIEH (Ghana) said the Court, by engaging with the relevant Libyan national authorities, has taken a positive step in confidence-building that can yield the desired results. It is primarily the responsibility of States to protect their citizens, and as such, the State must be consulted on such matters. He encouraged the Court to continue to work with the Libyan judicial system and provide the needed technical and capacity-building support. Certainly, the independence of these national courts should be paramount in the capacity-building efforts, he stressed. In view of the political situation in Libya, Ghana believes that the proposed signing of the memorandum of understanding, which should have the commitment of all relevant Libyan stakeholders, is also a step in the right direction as that will provide a political commitment to the whole process as soon as the situation in Libya normalizes.
SUN ZHIQIANG (China), citing uncertainty in the political situation, stressed the need for all parties to maintain calm and avoid acts that might lead to escalation. The current ceasefire must be maintained and differences over the legitimacy of Government must be resolved through dialogue. Consensus must be reached on the electoral road map, he said, adding that the international community must uphold the Libyan-owned and Libyan-led process and bring the country back on track. He noted that China is not a party to the Rome Statute. The Court should continue to abide by the principle of complimentary, stipulated in the Statute, and respect Libya’s judicial sovereignty.
ALBANA DAUTLLARI (Albania) encouraged the Prosecutor’s Office to continue collecting evidence for possible crimes committed during the 2014-2022 conflict, stressing that justice must prevail — no matter the perpetrator — so that Libyans can move forward, reconcile and look towards a better future. Expressing concern over ongoing violence against migrants and reports of torture in detention centres, she called for those responsible to be prosecuted nationally and internationally where necessary. Accountability is important to victims and survivors but can also serve as a deterrent against the repetition of crimes and abuses in the future. She went on to welcome the Prosecutor’s road map for accountability, along with his planned visit to Libya, and expressed hope that Libyan actors will facilitate the Office’s access on the ground to collect battlefield evidence and conduct independent investigations.
BARBARA WOODWARD (United Kingdom) stressed that the Court’s investigation is an important contribution to transitional justice, which is critical to the success of the political process and in the interests of all Libyans. Calling on the Libyan authorities to cooperate with the Court and the independent fact-finding mission, she said access to sites, evidence and witnesses free from intimidation is necessary for progress to be made. Her country supports the Prosecutor’s renewed strategy and the principles on which he will take forward the investigation. She then commended the Prosecutor’s work to cooperate with national authorities and his intention to develop such partnerships further, including in assisting prosecutions at the national or regional level, reiterating a call on all relevant States, including both States parties to the Rome Statute and States not party to it, to cooperate with the Court and surrender individuals subject to arrest warrants.
Mr. KHAN, taking the floor a second time, said that the International Criminal Court “can only be viewed as an awful testament to the continuous proclivity of mankind to wreak havoc and cause untold suffering on the most vulnerable”. While there is much blame to go around, the “question is whether or not we want to live in a world where justice prevails”, he stressed. Recalling his father’s words that “when you point a finger, there are three pointing back at you”, he questioned whether, although it is easy to indulge in blame, the international community should not try to raise its collective gaze to higher values and principles. Justice anywhere is not a silver bullet that will solve every malady afflicting humanity; rather, the more appropriate question is whether, but for the Court, peace and justice would have taken hold for the people of Libya. Recalling the words of Ghana’s delegate, he said that impunity, when it occurs, cannot be allowed to stand. “This is why we have the International Criminal Court,” he stressed.
TAHER M. T. ELSONNI (Libya) emphasized that the Libyan people desire to establish a modern, civil State, but this will not occur without comprehensive national reconciliation, which requires justice, truth, apology, reparation, forgiveness and tolerance. Achieving justice on Libyan territory is a matter of sovereignty and national jurisdiction, and the Libyan judiciary is committed to guaranteeing a fair, equitable trial for all suspects. Welcoming the Prosecutor’s new strategy of providing necessary resources and cooperating with national authorities to bolster accountability, he expressed hope that the strategy facilitates justice and combats impunity without selectivity or politicization. “Lasting peace cannot be achieved automatically,” he stressed, highlighting the need to acknowledge the suffering of victims and rebuild trust in State institutions. Against that backdrop, he called on the Court to quickly disclose the results of its investigations.
On the issue of immigration, he stressed Libya’s commitment to defend and protect migrants despite challenges. He rejected, however, attempts by some States to export their crises to Libya and advance resettlement in violation of international law. The international community’s position on human trafficking is also puzzling as, while the focus is on Libya, this phenomenon is transnational in nature. These networks and their leadership must be eliminated wherever they are. Thus, he called on the Prosecutor’s Office to include in its strategy comprehensive investigations to uncover and prosecute these international criminals who place migrants in Libya. He further called for support to build establishments and institutions, bolster stability and end interference in his country.