International Criminal Court Chief Tells Security Council Libya Wants Domestic Courts to Handle Proceedings against Son of Former Libyan Leader Qadhafi

16 May 2012
SC/10651

International Criminal Court Chief Tells Security Council Libya Wants Domestic Courts to Handle Proceedings against Son of Former Libyan Leader Qadhafi

16 May 2012
Security Council
SC/10651
Department of Public Information • News and Media Division • New York

Security Council

6772nd Meeting (AM)

International Criminal Court Chief Tells Security Council Libya Wants Domestic

Courts to Handle Proceedings against Son of Former Libyan Leader Qadhafi

 

Says First Time Court Faces ‘Admissibility Challenge’; Council Members Say

Proceedings Must Follow International Standards, All Perpetrators Held to Account

Security Council members today expressed their confidence in the International Criminal Court’s actions in bringing to justice perpetrators of serious crimes in Libya last year, after its Chief Prosecutor notified them that Libyan authorities had requested that proceedings against a son of former leader Muammar al-Qadhafi should be held in the country itself rather than transferred to the Court.

“The commitment to justice and the rule of law plays a crucial role in the current post-conflict situation; it provides a framework for the national authorities to act,” Luis Moreno-Ocampo said in his briefing to the 15-Member body as he notified it of the Libyan Government’s stated desire to investigate and prosecute in domestic courts the case against Saif al-Islam Qadhafi for serious crimes, including murder and rape, during the 2011 revolution.

Mr. Moreno-Ocampo said that it would be up to the International Criminal Court’s Pre-Trial Judges to decide on the Libyan “admissibility challenge”.  He noted that Libyan authorities pledged to attain the highest international standards in their proceedings and had said that Mr. Qadhafi had been kept in adequate conditions of detention, with access to humanitarian organizations and legal counsel.

That was the first time in the Court’s history that such a challenge had occurred, he said.  It related to the core principle of the Rome Statute under which the judicial body had been established, giving States the primary obligation to conduct proceedings, with the international Court being complementary.

He said that the Prosecution’s observations on the matter would be presented on 4 June and would not evaluate the Libyan judicial system as a whole, but instead present facts related to the Statute’s requirements, such as the existence of an independent and impartial judiciary.  The Council might decide to present observations, but stressed that this was a judicial issue that would be decided by the Judges of the Pre-Trial Chamber.

In his presentation, Mr. Moreno-Ocampo also described developments in the case of former Libyan intelligence chief Abdullah al-Senussi and its investigations of other human rights abuses committed in Libya.

Recalling the findings of the United Nations Commission of Inquiry, he said that the Commission had found that the North Atlantic Treaty Organization (NATO) had not deliberately targeted civilians in Libya, but it had presented evidence of civilian casualties caused by five air strikes.  His Office, he said, had no jurisdiction to evaluate the proper scope of the NATO mandate, but was requesting further information about the five incidents.

He said that the Libyan Government’s strategy to comprehensively address all crimes and end impunity must remain a priority and must address the transfer to central authorities and the screening of thousands of detainees in a timely manner.  All possible steps should be taken to curb mistreatment or torture.  He stressed that his Office’s mandate included respect for genuine national proceedings, while adding, “The Office will monitor Libya’s national proceedings closely.”

In the discussion following Mr. Moreno-Ocampo’s presentation, Council members commended the work of the Chief Prosecutor’s Office for quickly and properly responding to the referral and the need to protect civilians by issuing arrest warrants to alleged perpetrators of the most serious crimes.  Most speakers also commended the Libyan authorities for their intentions to undertake proceedings under the principle of complementarity of the Rome Statute.  “It is a great tribute to this post-conflict country to want to shoulder its responsibilities,” France’s representative said.

Speakers emphasized, however, that the proceedings must be conducted under international standards and that all perpetrators of human rights abuses must be held to account, no matter their affiliation.  In addition, they urged the swiftest possible transfer of detainees to Government control.

The representatives of China and the Russian Federation reiterated their call for a full investigation, reporting to the Council on civilian casualties caused by NATO air strikes, given the Commission of Inquiry’s findings that such casualties did in fact occur in five incidents.  “The Council must know the truth,” China’s representative said.

Speaking last, however, Libya’s representative said that NATO’s plans had been aimed at protecting civilians from the violence of Mr. Qadhafi’s forces, and that in the course of its operations minimal errors had occurred, as shown by the Commission of Inquiry.  Nevertheless, Libyan authorities would investigate all incidents and take appropriate actions afterward, such as compensating those harmed.

In sum, he said, all deaths and injuries during the revolution would be investigated impartially, both to end impunity and because the history of all victims was part of the history of Libya and their fates must be known in order to focus on the future.

“Libya was not taking any negative stand toward the Court”, he said, also praising the work of the Prosecutor’s Office while explaining that the Libyan Government had put forward its challenge to transfer the case of Mr. Qadhafi to the international Court because of the judicial reforms that ensured international standards in Libya, the highly sensitive internal situation, the status of Libya as a non-party to the Rome Statute, and the investigations that had already been conducted by Libyan authorities.

Achievement of justice was one of the goals of the Libyan uprising last year and thus was a top priority of the present Government, he said, assuring the Council of the standards that were being applied and that all detainees would soon be under the monitoring and control of the central Government.

Also speaking this afternoon were the representatives of Pakistan, United States, Portugal, Guatemala, Morocco, South Africa, Germany, United Kingdom, Colombia, Togo, India and Azerbaijan.

The meeting began at 11:18 a.m. and ended at 1 p.m.

Background

The Security Council met this morning to hear a briefing by the Chief Prosecutor of the International Criminal Court under the agenda item “The situation in Libya”.

Briefing

LUIS MORENO-OCAMPO, Chief Prosecutor of the International Criminal Court, recalled that in June 2011 the Court’s judges concluded that, in order to stop the crimes being committed in Libya and protect civilians, it was necessary to arrest the three individuals identified as the most responsible:  former leader Muammar al-Qadhafi; Saif al-Islam Qadhafi; and former intelligence chief Abdullah al-Senussi.  The Court said that, should the Libyan authorities decide to prosecute the same individuals, they should submit an admissibility challenge and it would be for the judges to decide.

He informed the Council that, after the arrest of Saif al-Islam Qadhafi, the Libyan authorities have presented such a challenge, pledging to attain the highest international standards in their investigation of serious crimes, including murder and rape allegedly committed by Mr. Qadhafi during the 2011 revolution, and any trial that might result.  They also said that Mr. Qadhafi had been kept in adequate conditions of detention and given access to counsel, receiving visits from the International Committee of the Red Cross (ICRC), civil society organizations and family members, and had not been subjected to abuse.

As the Security Council had referred the situation to the International Criminal Court, he said, it must be notified of the challenge, according to Court’s rules, and might, in response “make representation on the jurisdictional challenges”, he noted, adding that the Court had transmitted notification through a note verbale to the Secretary-General.  That was the first time in the Court’s history that that had occurred, and it related to the core principle of the Rome Statute stipulating that States had the primary obligation to conduct proceedings, with the Court being complementary.

The Prosecution would present its observations on the matter on 4 June, he said, adding that his Office would not evaluate the Libyan judicial system as a whole, but instead check the factual situation in accordance with the Statute’s requirements, which included the intervention of an independent and impartial judiciary.  The Council might decide to present observations, but that was a judicial issue, which would be decided by the judges of the pre-trial Chamber.

Turning to other cases concerning Libya, he said that Mr. al-Senussi had been arrested in March by Mauritian authorities and was the subject of extradition requests from France and Libya, as well as a request for surrender from the International Criminal Court.  Mauritania would decide.  He also informed the Council that his Office continued to collect evidence on gender crimes committed against both men and women.  In addition, the report of the United Nations Commission of Inquiry, issued in March, contained thousands of allegations of crimes committed by Qadhafi forces and thousands of individuals allegedly involved, who were in detention; many were not under the jurisdiction of the national authorities and were allegedly subjected to abuse by rebel forces.  There were also allegations of crimes committed against civilians in Tawergha, and questions remained about the death of Muammar al-Qadhafi.

The Commission found, however, that the North Atlantic Treaty Organization (NATO) had not deliberately targeted civilians in Libya, he reported.  Of a total of 25,944 air sorties and 7,642 air-to-surface weapons employed, the Commission citied evidence with respect to five air strikes, which reportedly had produced civilian casualties.  The Office took due note of the Commission’s findings.  It had no jurisdiction to evaluate the proper scope of the NATO mandate, but was requesting further information about the five incidents.

The Government, he said, had committed to comprehensively address all crimes and end impunity in Libya.  That comprehensive strategy must remain a priority if the Government wanted to show zero tolerance of impunity, and must address, as a priority, the transfer to central authorities and the screening of thousands of detainees, ensure justice for victims and release those against whom there was no basis for investigation.  At the same time, all unofficial detention centres should be dismantled and all possible steps should be taken to curb mistreatment or torture.

His Office, he noted, had the mandate to investigate those who bore the greatest responsibility for the most serious crimes under the International Criminal Court’s jurisdiction, while respecting genuine national proceedings.  “The Office will monitor Libya’s national proceedings closely,” he said.  The Office was also gathering information about abuses alleged to have been committed by high-level Qadhafi officials who were outside Libya.

“The commitment to justice and the rule of law plays a crucial role in the current post-conflict situation; it provides a framework for the national authorities to act,” he said, noting appreciation expressed by Libyans for the decisive intervention of the Council and the Court.  He pledged his Office’s continued commitment to working with the Libyan Government and with the Security Council to ensure that justice for all the victims of Libya was achieved.

Statements

RAZA BASHIR TARAR ( Pakistan) noted at the outset that his country was not a signatory to the Rome Statute, but acknowledged the rights and obligations of those States that were parties to it.  The Rome Statute established that the International Criminal Court was meant to be complementary to national jurisdiction, and primacy was to be given to national judicial processes.  He, therefore, hoped that Libya’s request to try the individuals under consideration would be regarded positively.  If such a request was granted, the Libyan authorities must guarantee that the rights of those individuals were respected.  His delegation also expected that the prosecutor would conduct thorough and objective investigations.

SUSAN RICE ( United States) said that resolution 1970 (2011) and the referral of the Libya situation to the International Criminal Court represented a “historic milestone in the fight against impunity”.  It was now an important moment both for Libya and for the Court.  Her delegation was encouraged by Libya’s ongoing cooperation with the Court; it was critical for Libya to take all necessary steps to comply with its international obligations.  There was much work to be done domestically in that country to ensure a functioning justice system, which guaranteed humane treatment and due process.  The United States agreed with the Prosecutor that Libya faced serious challenges in organizing the trial, and was deeply concerned about the patterns of rape documented in the report.  Sexual and gender-based crimes must not go unpunished, nor should there be retribution for those who had been loyal to Muammar al-Qadhafi.  The United States was working with the United Nations Support Mission in Libya (UNSMIL) and with the Libyan authorities to address its justice reform goals.

SERGEY N. KAREV ( Russian Federation) said that crimes had been committed by both the Qadhafi regime and the rebels, and that questions remained about crimes committed by senior leaders of those countries involved in the NATO-led operations in Libya.  Those actions should be investigated, he stressed.  In that context, it was important to continue to review all data received.  With regard to the desire of the Libyan Government to conduct the trial of Saif al-Islam Qadhafi and others, he said that the jurisdiction of the International Criminal Court was intended to complement, but not replace, national judicial processes.  In this particular case, however, the question at hand was whether the Libyan authorities were taking “real steps” to investigate the crimes committed.

JOÃO MARIA CABRAL ( Portugal) thanked Mr. Moreno-Ocampo’s Office for its work, as well as its cooperation with Libyan authorities and the United Nations system.  He stressed the importance of ending impunity and providing justice for serious human rights crimes and pledged to closely follow developments in the Libyan cases, expressing trust that the International Criminal Court would ensure that any trials met international standards.  He also looked forward to developments on investigation of gender crimes, and stressed the importance of victim protection.  Acts of retaliation were inadmissible and such developments as disappearances were unacceptable.  He encouraged the Prosecutor’s Office to ensure that justice prevailed, in cooperation with all relevant entities.

JOSÉ ALBERTO BRIZ GUTIÉRREZ ( Guatemala) welcomed progress in Libya and said that it was critical for the Security Council to continue its cooperation with the Court.  Necessary assistance must also be provided to the Court by all States, including those that had not signed the Rome Statute.  It was important not to interfere in its judicial proceedings, however, or on the request made by the Libyan authorities, which represented a good signal showing the intentions of providing justice in Libya.  He said that all serious allegations in Libya must be pursued regardless of their alleged perpetrators, and all detention centres must come under national control, lest further human rights violations occur.  Finally, he stressed ethnic groups must not be catalogued, in order to avoid other abuses.

MOHAMMED LOULICHKI ( Morocco) noted the high aspirations of the Libyan leadership in the spheres of democracy and justice and welcomed their cooperation with the Court, as conveyed in the report of the Prosecutor.  Based on the spirit of complementarity in the Rome Statue, the Libyan authorities had said they were in the process of an appropriate investigation and would reach international standards of fairness and the prevention of impunity, therefore providing remedies to the victims and their families and promoting reconciliation.  He commended the transitional justice laws adopted in Libya and offered to share with the country Morocco’s experiences in averting human rights violations.  He praised the courage and hopeful spirit of the Libyan people and predicted they would improve the well-being of the region.

DOCTOR MASHABANE ( South Africa) said that his country had supported resolution 1970 (2011).  It did not support any actions that encouraged the perception of the International Criminal Court being used for political reasons.  Mindful of the primacy of national jurisdiction, even in the case of Libya, his delegation looked forward to the decision of the Court on the matter of jurisdiction.  He stressed that the investigation of crimes committed should be conducted across the board, and not only in the cases of suspected crimes committed by pro-Qadhafi forces.  South Africa was also concerned about allegations of detentions and torture of African migrants who had been loyal to pro-Qadhafi forces.

CHRISTOPHE EICK ( Germany) said that there had been an impressive level of cooperation of States with the International Criminal Court, and that Germany was ready to support the Court’s investigations, as well as to comply with any requests for assistance.  Regarding the case of Mr. al-Senussi, he called on those concerned to ensure that he faced comprehensive proceedings covering all crimes allegedly committed.  In addition, Germany was concerned that Mr. Qadhafi remained in custody in Zintan, and that his transfer to custody under the full authority of the Libyan authorities was still outstanding.  He highlighted the importance of ensuring transitional justice and national reconciliation in Libya, and acknowledged efforts taken to date in that regard.  At the same time, he shared the concerns of the Prosecutor at the slow pace of arranging the transfer of control of detainees from militias and local authorities to national authorities, among other things.  Finally, regarding the NATO actions in Libya, he stressed that the organization had not deliberately targeted civilians, but rather had taken extensive precautions to ensure that no civilians were killed.

MICHAEL TATHAM ( United Kingdom) said that Libya was now “getting back on its feet”.  The transitional Government and the National Transitional Council were leading the process of developing a new State.  To make further progress, the Libyan authorities should continue to screen all detainees and release those being held without due cause.  The international community recognized the remaining constraints on the Libyan judicial system, following more than four decades of dictator rule, and stood ready to assist the country in that regard.  Welcoming Libya’s continuing cooperation with the International Criminal Court, he also noted with interest the Libyan actions to investigate Mr. Qadhafi’s case.  The authorities of the United Kingdom had assisted with the Court’s investigation, and urged other States to do the same.  Finally, he agreed with several other speakers that all NATO airstrikes had been meticulously planned.

NÉSTOR OSORIO ( Colombia) said that the Libyan Government had shown its resolve to cooperate with the Rome Statute, including diligence in preservation of evidence.  He commended its attitude.  It was important to ensure that serious crimes committed did not go unpunished, but it was for the International Criminal Court to decide whether due process would be better served by proceedings in Libya or elsewhere.

WANG MIN ( China) expressed hope that the relevant International Criminal Court actions would be conducive to the reconstruction efforts in Libya.  Council resolutions concerning the situation should be strictly implemented.  In addition, he said that the Commission of Inquiry showed clearly that civilian casualties were caused by NATO actions and those deaths should be investigated.  The Council must know the truth.

MARTIN BRIENS ( France), recounting the referral to the International Criminal Court of the Libyan situation, said that the Council must reiterate its message of combating impunity in all circumstances.  In the case of Libya, the Court had shown its ability to act swiftly and exert pressure on those committing atrocities by quickly and properly issuing arrest warrants.  The Libyan authorities were also fulfilling their obligations under the principle of complementarity of the Rome Statute, he said, adding, “It was a great tribute to this post-conflict country to want to shoulder its responsibilities.”  He encouraged the Libyan authorities to transfer all detainees to Government control.  Regarding crimes allegedly committed by NATO, he recounted the findings of the Commission of Inquiry that civilians were not targeted and added further that national authorities had pledged to investigate deaths.

KODJO MENAN ( Togo) welcomed cooperation between the Office of the Prosecutor and the Libyan authorities.  The main aim was to gain sufficient evidence to establish the truth and defend the rights of victims of crimes.  In the cases against Mr. Qadhafi and Mr. al-Senussi, he hoped that the discussions between the Office and the authorities would provide a unique opportunity to ensure a fair trial, and hoped that the Court would soon have the information necessary to rule on the admissibility challenge.  Togo was still concerned about allegations of gender-based crimes, including rape, committed at detention centres and hospitals in Libya.  Those crimes had allegedly been committed, not only by pro-Qadhafi forces, but also by revolutionary militia groups.  Togo hoped that the investigations by the Libyan authorities and the International Criminal Court would shed all possible light on those allegations and identify the perpetrators, allowing justice to be rendered.  Additionally, he welcomed the cooperation that existed between the Court and Rome Statute parties and non-parties, as well as with international organizations and regional groups.

VINAY KUMAR ( India) recalled, at the outset, that his country was not a signatory to the Rome Statute.  India expected that the International Criminal Court Prosecutor would carry out a thorough and impartial investigation into all alleged crimes committed by all parties to the conflict in Libya.  The Prosecutor must not be influenced by non-judicial considerations and should focus his attention solely on prosecution, without diversion due to extraneous considerations.  All those responsible for committing crimes covered under the Rome Statute should be held accountable, irrespective of the side of the conflict to which they had belonged.  Additionally, political or other non-judicial considerations should not exonerate anyone from prosecution for the crimes committed.

AGSHIN MEHDIYEV (Azerbaijan), also saying that his country was not a party to the Rome State, stressed that the protection of civilians and respect for humanitarian and human rights law, as well as the fight against impunity, was the responsibility of the international community as a whole.  Generally speaking, Azerbaijan believed that the Security Council and the broader international community could not approach selectively and remain indifferent to situations involving systematic and widespread violence and the use of military force against civilians.  He noted that the Libyan Government was investigating individuals for the same and additional crimes, and the same underlying conduct, as the Office of the Prosecutor, and that it had committed to ensure an effective and genuine investigation and fair trial consistent with the highest international standards.  It went without saying that due process for those detained must be ensured.  It was important, therefore, that the Government had managed to extend its control over the known detention facilities across Libya and had reiterated its commitment to close all unofficial centres as soon as possible.  Finally, the individual States involved in operations in Libya had the responsibility to investigate whether their own forces had violated the rules of warfare.

IBRAHIM O. A. DABBASHI ( Libya) paid tribute to the efforts of the Office of the Chief Prosecutor to achieve justice, put an end to human rights violations and end impunity.  The issuance of arrest warrants during the period of conflict performed an important function, and the Prosecutor’s professionalism had helped Libyan authorities to pursue justice for their part as well.  Achievement of justice was one of the goals of the Libyan uprising last year and, thus, was a top priority of the present Government.  Reforms had been carried out in that context, including separation of the judiciary from executive influence and rooting out corruption.  The system was now prepared to carry out impartial trials in accordance with international standards.

He said that the Libyan authorities had cooperated with the International Criminal Court and assisted it in the case of the three whose arrest warrants had been issued.  “ Libya was not taking any negative stand toward the Court”, but the Libyan Government on 1 May had put forward the request to challenge the transfer of the case of Mr. Qadhafi and Mr. al-Senussi to the Court, in consideration of the judicial reforms that ensured international standards in Libya, the highly sensitive internal situation, the status of Libya as a non-party to the Rome Statute, investigations conducted by Libyan authorities in the cases and other factors.

“Such a request only confirmed that Libyan authorities were adamant to carrying out the trials in Libya … and all Libyans were keen on the trials taking place there,” he said.  Libya was expecting close cooperation with the International Criminal Court and the Council to ensure the quality of the proceedings.  He assured the Council that Mr. Qadhafi would have an attorney in accordance with Libyan law.  Until now, however, Mr. Qadhafi himself had refused representation.

As for further cases, he said that they would be dealt with in an integrated plan of transitional justice with the aim of reconciliation, stability and social peace.  Allegations of rebel forces torturing detainees would be duly investigated, he assured the Council, adding that Libyan authorities were making consistent progress in monitoring and controlling all detention centres and had made a deadline of the end of this year to transfer all detainees to central control, he said.

Regarding allegations against NATO forces in the deaths of civilians, he said that NATO plans had been aimed at protecting civilians from the violence of the forces of Mr. Qadhafi.  The Commission of Inquiry showed that mistakes had occurred, but such errors occurred in all military actions.  Nevertheless, Libyan authorities would investigate all incidents and take appropriate actions afterward, such as compensating those harmed.  In sum, all deaths and injuries during the revolution would be investigated equally, because the history of all victims were part of the history of Libya and their fates must be known in order to focus on the future.

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For information media • not an official record
For information media. Not an official record.