Libya’s National Dialogue Gives Hope for Transition to Peace, Chief Prosecutor of International Criminal Court Tells Security Council

SC/12105
5 November 2015
7549th Meeting* (AM)

Libya’s National Dialogue Gives Hope for Transition to Peace, Chief Prosecutor of International Criminal Court Tells Security Council

Many Members Call for Transfer of Former Regime Associates into Tribunal’s Custody

The era of accountability and rule of law upon which to build the future of Libya may be within reach of its people, Fatou Bensouda, Chief Prosecutor of the International Criminal Court, told the Security Council this morning as it addressed the situation in that country.

Introducing the Court’s tenth report to the Council, she said that the ongoing national dialogue facilitated by the United Nations towards establishing a Government of national accord represented hope for a transition to lasting a durable peace.  She noted in particular an affirmation by the Misrata/Tarwergha Joint Committee of its support for the formation of such a Government, and emphasized in that regard that the Council’s tangible support remained crucial.

Ms. Bensouda said a significant body of material provided by the Libyan authorities in late December 2014 continued to shed light on instances of atrocity crimes.  She said her office had requested resources for additional investigations as part of its 2016 proposed budget, but there were indications that those resources would not be forthcoming.  She “strongly” invited the Council to seriously consider helping her office to obtain the resources required for the effective investigation of alleged crimes committed in a situation that the Council had referred to the Court.

Turning to the impending trials of Qadhafi regime members and associates, she said the Appeals Chamber had affirmed the admissibility of the case against Saif al-Islam Qadhafi and the inadmissibility of the case against Abdullah al-Senoussi.  Despite repeated demands by the Chief Prosecutor’s Office, Mr. Qadhafi had not been surrendered into the Court’s custody.  The Libyan authorities must heed the Council’s call for compliance with the Court’s request that they immediately surrender him, she stressed, noting that the Tripoli Court of Assize had sentenced both Mr. Qadhafi and Mr. al-Senoussi to death.

The Chief Prosecutor said she remained concerned that all sides, including the Libyan National Army, Libya Dawn, the so-called Islamic State of Iraq and the Levant/Sham (ISIL/ISIS), as well as their respective allies and international actors, continued to commit attacks that had resulted in civilian casualties.  Continuing cooperation, consultation and coordination between the Office of the Chief Prosecutor and the Libyan authorities remained crucial, she emphasized, reiterating that Libya needed help to strengthen its national capacity to respond to Rome Statute crimes through the formation of an international contact group on justice issues.  “Ending impunity for atrocity crimes in Libya is an important goal that is both achievable and necessary for sustainable peace and stability in the country,” she said.  That goal could only be met through joint action, commitment and substantial support on the part of all relevant actors.

In the ensuing debate, Council members underlined the need for continued cooperation between the Office of the Prosecutor and the Libyan authorities.  They also urged Libya to surrender Mr. Qadhafi to the International Criminal Court, noting that the Tripoli Court of Assize had issued death sentences against Mr. Qadhafi after trying him in absentia.  Welcoming the progress made in efforts towards the creation of a Government of national accord, they stressed that without it there could be neither the security nor the stability necessary to establish the rule of law.

Angola’s representative said that since foreign terrorist fighters and political military factions had “installed mayhem” in Libya, the country lacked the conditions suitable for prosecuting the perpetrators of atrocity crimes, which the Rome Statute outlined as a national responsibility.  Nor were the conditions conducive to applying due process and fair trials, he said, stressing that only peace and stability would enable Libya to have a normal justice system.

The representative of the Russian Federation said the Court must be able to investigate all crimes in an impartial manner, noting that, although there was sufficient evidence of crimes committed by ISIS and others, no specific steps were being taken in that regard.  Calls to investigate civilian deaths resulting from air strikes by the North Atlantic Treaty Organization (NATO) had also gone unheard, he said, expressing hope that the Chief Prosecutor would take into account the fact that due attention must be paid to all crimes committed by all sides.

Several speakers noted the Chief Prosecutor’s appeal for adequate funding to continue investigations into atrocity crimes.  Chile’s representative welcomed in that regard the Prosecutor’s invitation to the Council to provide resources for carrying out investigations that had been referred to it, and said that complementary financing formulas should be applied.  However, New Zealand’s representative said that financial matters should be deferred to the General Assembly, which had the prerogative to decide on funding issues.

Libya’s representative assured the Council that authorities in his country had rejected the sentences handed down by the Tripoli Court of Assize against former members of the Qadhafi regime, noting that no fair trial could be held in areas controlled by armed militias.  While Libya had reaffirmed its commitment to investigate and punish the perpetrators of all crimes committed on its territory, no Government would be in a position to control the security situation and uphold justice as long as Tripoli, the capital, was held by militias.

Also speaking today were representatives of Nigeria, Chad, Venezuela, Lithuania, United States, Spain, Jordan, Malaysia, China, France and the United Kingdom.

The meeting began at 9:32 a.m. and ended at 11:05 a.m.

Introduction of Report

FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, introduced the tribunal’s tenth report to the Security Council, saying that, since the death of Muammar Qadhafi, Libya had been embroiled in a seemingly endless cycle of violence, large-scale commission of crimes and chronic instability.  The breakdown of law and order had resulted in an increase in violations of human rights and international humanitarian law.  National efforts to strengthen accountability and establish the rule of law faced great challenges, she said, adding, however, that the Libyan people’s long ordeal might soon see a redirection towards a more promising future.

The ongoing national dialogue facilitated by the United Nations towards establishing a Government of national accord represented hope for transition to a durable peace, she continued.  Moreover, the United Nations Support Mission in Libya (UNSMIL) had facilitated successful talks towards a resolution of the Tawergha issue.  Particularly noteworthy was the affirmation by the Misrata/Tarwergha Joint Committee of its support for the formation of a Government of national accord.  “The era of accountability and rule of law, on which to build the future of the country, may indeed be within reach for the Libyan people,” she said, while emphasizing that the Council’s tangible support remained crucial.

She went on to say that a significant body of material provided by the Libyan authorities in late December 2014 continued to shed light on instances of atrocity crimes.  Stressing the importance of undertaking investigations, she said her office had requested resources for additional investigations as part of its 2016 proposed budget.  However, there were indications that those resources would not be forthcoming.  It was a matter of paramount importance to investigate the ongoing crimes, she underlined, calling upon States parties to provide crucial funding.  She also “strongly” invited the Council to seriously consider helping the Office of the Chief Prosecutor, in accordance with article 115 (b) of the Rome Statute, to obtain the resources required for the effective investigation of alleged crimes committed in a situation that had been referred to the Court by the Council.

Turning to the impending trials of Qadhafi associates, she said the Appeals Chamber had affirmed the admissibility of the case against Saif al-Islam Qadhafi and the inadmissibility of the case against Abdullah al-Senoussi.  Despite repeated demands by the Chief Prosecutor’s Office, Mr. Qadhafi had not been surrendered into the Court’s custody.  They Libyan authorities must heed the Council’s call for compliance with the Court’s request that they immediately surrender him, she stressed, noting that the Tripoli Court of Assize had sentenced both Mr. Qadhafi and Mr.  al-Senoussi to death.  Expressing concern over that issue, she said her office was also deeply concerned about videos of alleged acts of torture at Al-Habda prison, and was currently investigating the circumstances depicted in the videos.  She said the Libyan authorities had assured her office that those allegations were being pursued, and had provided documents relating to their investigations.

She went on to underline that her office had filed a request with the Pre-Trial Chamber seeking an order directing Libya to refrain from executing Mr. Qadhafi, immediately surrender him to the Court and report his death sentence to the Council.  Libya had explained that the death sentence was non-enforceable because Mr. Qadhafi had been tried in absentia, and acknowledged that he was not in Libya’s custody.  She said her office had sought and was carefully analysing information on the progress of the proceedings against Mr. al-Senoussi from UNSMIL, Human Rights Watch and the Libyan authorities.

The Chief Prosecutor said she remained concerned that all sides, including the Libyan National Army, Libya Dawn, the so-called Islamic State of Iraq and the Levant/Sham (ISIL/ISIS), as well as their respective allies and international actors, continued to commit attacks that had resulted in civilian casualties.  A total of 1,539 violent deaths had been recorded, and there had been 37 recorded incidences of car or suicide bombings.  ISIS had executed people for activities perceived as spying, homosexuality and social activism, among other incidents, she reported.

Continuing cooperation, consultation and coordination between the Office of the Chief Prosecutor and the Libyan authorities, she underscored, remained crucial for the implementation of the Memorandum of Understanding of November 2013 on burden-sharing regarding investigations and prosecutions in Libya.  She reiterated calls to help Libya strengthen its national capacity to respond to Rome Statute crimes through the formation of an international contact group on justice issues.  A Government of national accord might increase the prospects of reviving discussions on that proposal in the near future.

She appealed to all States that had not yet done so to engage with her office.  Some of the evidence and persons of interest were located outside Libya and could only be accessed through cooperation on the part of States.  “Ending impunity for atrocity crimes in Libya is an important goal that is both achievable and necessary for sustainable peace and stability in the country,” she said, adding that that goal could only be met through the joint action, commitment and substantial support of all the relevant actors.

Statements

KAYODE LARO (Nigeria) commended Libya’s cooperation with the Office of the Chief Prosecutor, especially on the part of the National Investigator, but urged a strengthening of cooperation in order to end impunity.  The Government of Nigeria had taken note of the Pre-Trial Chamber’s 2013 decision that the Mr. Qadhafi case was admissible, and as a signatory to the Rome Statute, Libya had a legal obligation to surrender him to the Court.  The Mr. al-Senoussi case was inadmissible, he said, while noting the Chief Prosecutor’s progress in the ongoing investigation, which was significant, given the security situation in Libya and the limited resources available to her office.  Condemning all mass executions and abductions by ISIS and others, he called for an immediate and unconditional ceasefire.  Nigeria supported the political dialogue and formation of a Government of national accord to establish the rule of law.  “This is vital to stabilizing the country and ending impunity,” he said, calling upon States parties to the Rome Statute to provide funding to the Chief Prosecutor’s Office, and on partners to cooperate with Libya, notably in strengthening its capacity in justice and the rule of law.

JULIO HELDER MOURA LUCAS (Angola) said the report revealed very little progress in implementation of the Memorandum of Understanding, which was an important requirement for judicial cooperation between Libya and the Chief Prosecutor.  The political and security environment impeded assistance to the Chief Prosecutor within the framework of resolution 1970 (2011).  Foreign terrorist fighters and political military factions had installed mayhem in Libya.  The country lacked the conditions suitable for prosecuting perpetrators of atrocity crimes, which the Rome Statute outlined as a national responsibility.  Nor were there conditions to apply due process and fair trials, he said, expressing concern over the illegal operation of detention facilities.  Only peace and stability would enable Libya to have a normal justice system, he said, voicing his country’s support for United Nations efforts to continue working with that country in seeking a political settlement.

CRISTIÁN BARROS MELET (Chile) said justice and accountability were essential for attaining a sustainable peace in Libya.  Several groups and the High Commissioner for Human Rights had expressed concern over the high number of civilian deaths caused by terrorist groups, including the self-proclaimed Islamic State.  It was imperative to end such deaths, abductions, torture, sexual violence and other degrading treatment.  He urged parties, with United Nations assistance, to create a Government of national accord, calling on Libyan authorities to fully cooperate with the Prosecutor, in line with resolution 1970 (2011), and with its international legal obligations, in line with resolution 2174 (2014).  Mr. Qadhafi must immediately be placed with the Court and Mr. al-Senussi should receive guarantees of due process.  He welcomed the Prosecutor’s invitation to the Council to provide resources for carrying out investigations that had been referred to it, noting that complementary financing formulas should be applied.

Mr. GOMBO (Chad), noting that the alarming security, political and human rights situations in Libya continued to deteriorate, shared his delegation’s concerns about torture and other degrading treatment of detainees.  Steps were needed to help clarify that situation, as were efforts to investigate how to end such illegal practices and identify the perpetrators.  Chad noted with concern the death sentences handed down on 28 July by the Tripoli Court of Assize against Mr. Qadhafi and Mr. al-Senoussi, and called upon Libyan authorities to ensure that detainees enjoyed a fair trial that respected their right to defence.  Insecurity arising from the activities of armed militias, increased terrorism and crimes such as trafficking undermined Libya’s future, and Chad called on all parties to form a Government of national accord.  The Court, despite limited resources, should examine ways and means to launch investigations for possible prosecutions, while the Council, through resolution 1970 (2011), must support the Court, he said, calling upon States parties to the Rome Statute to do the same.

GERARD VAN BOHEMEN (New Zealand), urging all parties to conclude the Libyan Political Agreement, expressed concern that civilian areas, places of worship and medical facilities were being attacked and minorities targeted.  Member States were obliged to prosecute foreign terrorist fighters domestically and afford one another the “greatest assistance” in related criminal investigations.  The Prosecutor’s ability to expand investigations had been hampered by the security situation and the lack of resources, he said, stressing that the Council must support the mandates it had given the Court, while financial matters should be deferred to the General Assembly.  The Government of New Zealand understood that Mr. al-Senoussi would appeal his sentence, he said, urging Libyan authorities to ensure that due process was followed.  New Zealand was also concerned that the Tripoli Court of Assize had handed down a death sentence to Mr. Qadhafi, while the larger issue of surrendering him remained outstanding.  The Council and the Court were ready to support Libya in fulfilling its obligations, he said.

RAFAEL DARÍO RAMÍREZ CARREÑO (Venezuela) said the Office of the Chief Prosecutor was making extraordinary efforts in helping Libya strengthen law and order.  Emphasizing that States parties to the Rome Statute should implement the Court’s decisions, he expressed concern over the Security Council’s referral of cases to the Court since the Court had jurisdiction over those cases, and such referrals could affect its independence and impartiality.  The situation in Libya was a result of the intervention by North Atlantic Treaty Organization (NATO) countries, which had affected the rule of law.  Noting that ISIS and other terrorist groups had expanded their reach throughout the country, he said that evidence of torture inflicted on members of the Qadhafi family was a clear violation of the rule of law and of human rights.  Venezuela rejected the decision of the Court of Assize that had condemned Mr. Qadhafi to death in absentia, and called upon the Libyan authorities to transfer Mr. Qadhafi to the International Criminal Court.  Libya’s institutional structure had not recovered and one could not speak about fair enforcement of law, he said, calling for a Government of national accord with legal institutions that would respect human rights and hold fair trials under the presumption of innocence.

NERINGA JUODKAITĖ PUTRIMIENĖ (Lithuania) expressed deep concern over the conflict in Libya, emphasizing that all parties must refrain from committing atrocities and take all measures to prevent them.  Lithuania was also seriously concerned about continued threats against human rights defenders, media workers and journalists, and encouraged the Chief Prosecutor to monitor that situation, as well as the barbaric crimes perpetrated by Da’esh and similar groups.  The safe return and protection of Tawerghans should be viewed as an important element of national reconciliation, she said, welcoming the ongoing dialogue on cooperation and burden-sharing between the Government and the Prosecutor.  It must continue in order to tackle impunity.  She called upon Libya to ensure that the verdicts and sentences handed down to Mr. Qadhafi and other officials of his late father’s regime did not undermine its obligation to cooperate with the Court.  Expressing concern about allegations of torture and inhumane treatment at Al-Habda prison, she encouraged Libyan authorities to end degrading treatment and torture, if they had occurred, and to investigate and punish those responsible.

MICHELE J. SISON (United States) urged the parties to endorse a political agreement without delay because the international community needed a Government partner in Libya.  Finalizing such an agreement could help return the country to a path of peace and stability.  Armed groups were committing serious human rights abuses against Libyans, in particular media and civil society activists, including female activists who had been trying to document such abuses.  Concerned about ISIS and allied groups, she condemned their ongoing acts of violence against civilians and reiterated the urgent need to establish a Government of national accord.  Such a Government could address violations of human rights and international humanitarian law on a national scale.  The United States urged Libya to transfer Mr. Qadhafi to the Court, she said, adding that national proceedings should be conducted in compliance with the country’s international obligations.  Those responsible for serious crimes should be held accountable, because accountability would be of key importance in the quest for lasting peace and stability.

EVGENY ZAGAYNOV (Russian Federation) recalled that when the Council had referred the situation in Libya to the International Criminal Court, members had said it would help end the violence in the country.  Unfortunately, that had not happened, and now ISIS was committing mass executions there.  Mr. al-Senoussi’s case required review, he said, because the report cited indications of torture and a death sentence.  The Court must be able to investigate all crimes in an impartial manner, he emphasized, noting that, although there was sufficient evidence of crimes committed by ISIS and others, no specific steps were being taken.  Calls to investigate civilian deaths resulting from NATO air strikes had also gone unheard.  The words “atrocity crimes” were not contained in any category mentioned by the Court, he pointed out, calling for strict use of the terminology agreed by States.  The Russian Federation hoped the Prosecutor would take into account the fact that due attention must be paid to all crimes committed by all sides, he stressed.

JUAN MAUEL GONZALEZ DE LINARES (Spain) said one could not remain indifferent to the horrors that the Libyan population suffered daily, adding that indiscriminate attacks against civilians, torture and other crimes could not be tolerated.  Noting Libya’s non-cooperation regarding the surrender of Mr. Qaddafi, he reiterated that he should be surrendered immediately to the International Criminal Court.  Spain was concerned about the use of torture and the death sentence issued against Mr. al-Senoussi, he said, adding that the Court might wish to review its decision regarding the inadmissibility of that case.

MAHMOUD DAIFALLAH MAHMOUD HMOUD (Jordan), emphasizing that the success for the Court would depend on cooperation, calling upon Libya to continue providing all facilities and logistical support required for collecting evidence, conducting investigations, ensuring information exchange, and fostering the arrest and surrender of all perpetrators of crimes.  It was imperative that signatories to the Rome Statue help the Court fulfil its mandate, he said, pointing out that the numbers of displaced persons and asylum seekers were growing due to killings, kidnappings, torture and arbitrary arrests by criminals and armed groups such as ISIS.  Libya must continue to promote the rule of law and ensure accountability for all criminals without exception, in line with international standards for prosecution, he said.  The country required assistance in prosecuting crimes committed on its territory, he said, urging the international community to support the legitimate authorities in building a new democratic Libya.

SITI HAJJAR ADNIN (Malaysia) said the political situation in Libya had not improved much and the security situation had worsened.  She voiced concern that grave crimes were being committed by ISIL, as well as all the other parties to conflict and their respective allies.  Large-scale abductions, torture and executions had led to civilian casualties.  Jordan was concerned that civilian casualties attributed to ISIL were higher, she said, deploring the group’s indiscriminate violence.  The perpetrators must be held accountable, she emphasized.  “The culture of impunity must not be allowed to prevail any further.”  Acknowledging that the ability of the Libyan authorities to investigate and prosecute perpetrators of atrocity crimes depended on stability, she urged all parties to engage in the United Nations-facilitated dialogue, finalize the political agreement and agree immediately on a Government of national accord.  The latter would mark a crucial first step in combating impunity, addressing humanitarian conditions and fostering the rule of law.

YONG ZHAO (China) said that any settlement should respect the will of all Libyans and ensure the maintenance of the country’s sovereignty and territorial integrity.  Indeed, stability was a necessary precondition for justice.  China’s position on international judicial institutions remained unchanged, he said.

TANGUY STEHELIN (France) said that since the International Criminal Court had declared its competence to try Mr. Qadhafi, the death sentence handed down by the Tripoli Court of Assize was a matter of great concern.  The Council must redouble its efforts to have Mr. Qadhafi transferred to The Hague.  Noting that the Court had declared the case against Mr. al-Senoussi inadmissible, he said concerns had been raised about allegations of torture in Al-Habra prison.  However, the fact that the Prosecutor had been able to cooperate with the Libyan authorities was a positive signal.  He went on to emphasize that crimes attributed to ISIL/Da’esh should not be left unpunished, urging the Office of the Prosecutor to continue its investigation.  France urged all parties to establish a Government of national accord now that compromise had been reached.  The Council must leave no stone unturned in helping the Libyan authorities cooperate fully with the International Criminal Court, he said.

MATTHEW RYCROFT (United Kingdom), Council President for November, spoke in his national capacity, saying he was deeply concerned at the lack of security in Libya which had an adverse impact on the Prosecutor’s investigation.  Crimes were still being committed and violence was still being used to achieve political goals.  The United Kingdom called upon all countries to prosecute Libyans on their respective territories who had committed crimes in their country.  The political agreement to establish a Government of national accord had been long overdue.  Pointing out the vital importance of judicial cooperation with the Libyan authorities, he urged all States to support the Prosecutor’s efforts in that regard.  Reports of torture in Al-Habra prison were of concern, but the Office of the Prosecutor was still of the view that the case against Mr. al-Senoussi was inadmissible.  Libya had failed to comply with the International Criminal Court’s request to surrender Mr. Qadhafi, and the United Kingdom called on the relevant authorities to surrender him to the Court without delay.

IBRAHIM DABBASHI (Libya) said authorities in his country had rejected the sentences handed out by the Tripoli Court of Assize against former members of the Qadhafi regime, he said, noting that no fair trial could be held in regions held by armed militias.  While Libya had reaffirmed its commitment to investigate and punish the perpetrators of all crimes committed, no Libyan Government would be in a position to control the security situation and uphold justice as long as Tripoli, the capital, was held by militias.

He went on to reject allegations by some Council members of racial discrimination in Libya owing to the detention of sub-Saharans, emphasizing that differences in skin colour had no meaning in his country.  Noting that a large number of Libyans were black, including the Head of Government and the leader of the air force, he said such rumours had started during the uprising, after Muammar Qadhafi had enrolled a number of sub-Saharan fighters to help him face the challenge.  The detention of those who entered the country illegally protected them from human traffickers, he added.

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*  The 7548th Meeting was closed.

For information media. Not an official record.