Qadhafi Falls under National Jurisdiction, Permanent Representative Insists
Justice and the rule of law remained critical key elements for the return to stability in Libya, the Chief Prosecutor of the International Criminal Court, told the Security Council this morning as it addressed the situation in that country.
“Nations are not built overnight, but to last and to withstand the challenges of the twenty-first century, they must be built on strong foundations. Justice will always serve as a central pillar,” Fatou Bensouda told the 15-member body in her briefing.
Introducing her eleventh report to the Council pursuant to resolution 1970 (2011), she said that the last six months had witnessed “significant developments in Libya’s slow and difficult process towards the establishment of a unity Government”, following the December 2015 signing of the United Nations-brokered agreement.
With justice, accountability and the rule of law central to that effort, she encouraged the emerging Government of National Accord to give priority to devising effective plans and strategies to address atrocity crimes while investing in the necessary national institutions for such a critical endeavour.
Over the same period, she noted that investigations by her Office had progressed at a slower pace than desired due to a lack of sufficient resources and the adverse security situation. Despite such constraints, the Prosecutor’s Office was assessing the potential for expanding its investigations into the alleged crimes of Islamic State in Iraq and the Levant (ISIL/Da’esh) and other terrorist groups. However, she underlined that Member States had the primary responsibility to investigate and prosecute nationals who had committed such crimes.
In regard to the case of Saif al-Islam Qadhafi, the son of the head of the former regime, she again called for his transfer to the International Criminal Court. As the Government had told the Court that Mr. Qadhafi was being held by a militia, her Office had filed a request with the pre-trial chamber for an order to transmit a request to the militia’s commander to render him to the Court.
Following Ms. Bensouda’s briefing, Council members took the floor to express appreciation for the work of her Office in Libya despite the security challenges, and to express concern over the continued suffering of civilians in the country due to inter-factional strife and the activities of ISIL and other groups. Some speakers expressed particular concern over the abuse of migrants at the hands of traffickers and other profiteers.
Most speakers welcomed progress in agreements towards the consolidation of the Government of National Accord and urged continued international assistance in that regard. Many called on the national authorities to cooperate with the International Criminal Court in the matter of Mr. Qadhafi and other figures from the previous regime responsible for grave crimes.
While many council members also agreed that justice and the rule of law were central to the restoration of stability in Libya, the representative of New Zealand, however, warned that the International Criminal Court could not be a panacea for Libya’s challenges. As a court of last resort, it was never intended to replace national justice systems.
As well, the representative of the Russian Federation questioned the relevance of a continuing dialogue on Libya between the Prosecutor’s Office and the Security Council, citing a lack of new cases being investigated in the past years and the dearth of new information in the Courts’ latest report, which, he said, seemed like the report of a monitoring mission.
After members’ statements, the representative of Libya reaffirmed his country’s full determination to work with the Court to end impunity for crimes covered by the Rome Statute, despite the challenges the legal authorities were still confronting. He stressed that security was required to re-establish the rule of law, which, in turn, meant that the Government must have the sole means of law enforcement, including munitions needed for the struggle against ISIL. In that regard, he welcomed international assistance in consolidating national unity and fighting terrorism.
In the case of Mr. Qadhafi, he emphasized that the Court had no right to deal with national individuals without working through the national Government. As the Government was not in control of relevant prisons, the matter could not currently be resolved.
Also speaking today were the representatives of China, Uruguay, Senegal, United States, Malaysia, United Kingdom, Angola, Ukraine, Spain, France, Venezuela, Japan and Egypt.
The meeting began 10:05 a.m. and ended at 11:44 a.m.
FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, said the last six months had witnessed “significant developments in Libya’s slow and difficult process towards the establishment of a unity Government”, following the December 2015 signing of the United Nations-brokered agreement. Since justice, accountability and the rule of law had been central to that effort, the Government of National Accord was encouraged to give priority to devising effective plans and strategies to address atrocity crimes while investing in the necessary national institutions for such a critical endeavour. Over the same period, investigations by the Office of the Prosecutor had progressed at a slower pace than desired due to a lack of sufficient resources and the adverse security situation. Having received numerous documents from the Libyan Prosecutor-General’s Office, it had pursued numerous leads and continued to carefully analyse and assess the evidence in its possession to determine whether the requisite legal standards for requesting additional arrest warrants had been met.
Despite the challenges, the Prosecutor’s Office remained fully committed to its mandate, she emphasized, adding that its success in Libya would depend on the collective determination of all relevant actors to bring perpetrators of crimes to justice and, in so doing, help to deter the commission of future crimes. The threat of Islamic State in Iraq and the Levant (ISIL/Da’esh) and groups proclaiming allegiance to Al-Qaida was too serious to be ignored. She reiterated her calls for all national and international law enforcement agencies to contact and join her Office in its efforts to end the suffering in Libya. While still nascent, a growing national network of such was beginning to take shape, she said, stressing that those who committed, financed or encouraged the commission of grave crimes must understand clearly that they would be held responsible.
As the Government of National Accord assumed its duties, she continued, Libya remained under a legal obligation to effect the immediate arrest and surrender of Saif al-Islam Qadhafi to the International Criminal Court, in line with resolution 2238 (2015). It was important that the Government consult with the International Criminal Court’s Pre-Trial Chamber on the matter and seek international assistance, as appropriate. Since Libya had told the Court that Mr. Qadhafi was in custody in Zintan, and “unavailable to the Libyan State”, the Prosecutor’s Office had recently filed a request with Pre-Trial Chamber I for an order directing the Registry to transmit the request for his arrest and surrender to the commander of the battalion detaining him. In the case of Abdullah al-Senussi, she said that despite having received a copy of the written judgement of the Libyan court, her Office was not yet convinced that new facts had arisen to negate the basis on which Pre-Trial Chamber I had found his case inadmissible. Assessment would continue if and when new and relevant facts became available. As for individuals suspected of committing torture and other crimes in Al Hadba prison, she welcomed the issuance of arrest warrants and called for follow-up action.
She went on to state that, according to reports, ISIL and other terrorist groups now accounted for the majority of civilian deaths in Libya, although some were still the result of the conflict between Libya Dawn and the Libya National Army. Abductions, detentions and ill-treatment in detention centres continued to be reported on all sides of the conflict. Refugees and migrants were particularly vulnerable to violence, sexual abuse, detention and other ill-treatment, she noted, stressing that coordinated steps must be taken to prevent profiteering from human trafficking. Despite resource constraints, the Prosecutor’s Office was assessing the potential for expanding its investigations into the alleged crimes of ISIL and other groups, she said, underlining, however, that Member States had the primary responsibility to investigate and prosecute nationals who had joined in such crimes. She said that in the coming months, she hoped to be able to resume all mandated functions in Libya and to accelerate efforts to secure justice for Rome Statute crimes. In that context, she commended the work of the United Nations Support Mission for Libya (UNSMIL) and pledged the continuing cooperation of her Office. In conclusion, she reiterated the centrality of justice and the rule of law in restoring stability to Libya. “Nations are not built overnight, but to last and to withstand the challenges of the twenty-first century, they must be built on strong foundations,” she said, declaring: “Justice will always serve as a central pillar.”
SHEN BO (China) said his county had followed the situation in Libya and supported the political process being led under the auspices of the United Nations. He also said he was pleased to see the Government of National Accord had begun its work in the capital, Tripoli, adding that he hoped all parties would stay firm in their commitment to the political process under way and work towards the early restoration of security and stability in Libya.
LUIS BERMÚDEZ (Uruguay) expressed his full support for the role of the International Criminal Court in strengthening international law through the prosecution of those deemed responsible for the most serious human rights violations. He called on Member States that were not yet parties to the Rome Statute to accede to it given its important role in fighting impunity and protecting people from crimes that constituted a threat to peace and security. The political agreement reached last December that established the Government of National Accord was a positive sign for efforts aimed at the reconciliation and reunification of Libya. The agreement could help prevent further bloodshed and put an end to the institutional crisis that has stricken the country. Further, the deal could enable Libya to truly transition towards peace and stability, he said, adding that he trusted the Government of Libya would fully cooperate with the International Criminal Court to identify the perpetrators of crimes, regardless of where they may be.
FODÉ SECK (Senegal) noted that the Security Council had sought to act in an effective manner to combat impunity in Libya. Despite the instability and security situation in Libya, as well as limited financial resources, the Prosecutor’s Office was working with the Libyan justice system, which demonstrated a genuine determination on the part of the stakeholders. Encouraging the Chief Prosecutor to continue her work, he called on the Libyan legal authorities to work to establish a credible, effective judicial system. It was up to the Libyan authorities to ensure respect for rule of law in their own country. He also called for further efforts to establish a stable security environment that guaranteed liberty, justice and respect for the rights of all. The international community’s support was vital for Libya and should go beyond cooperation between Libya and the International Criminal Court. There could only be a political solution to the crisis in Libya. The Council should insist on the establishment of a mechanism that would allow for an assessment of the operational situation facing the Court.
MICHELE SISON (United States), expressing appreciation for the Chief Prosecutor’s work in Libya, concurred that the situation described was part of a broader crisis. In that context, she welcomed recent progress in forming the Government of National Accord with international support. However, there was concern over continued attacks against civilians, including judicial actors, civil rights defenders and journalists, as well as abuses by ISIL-affiliated groups. In order to end the crimes, accountability must be assured and the rule of law re-established. A reckoning of abuses at the end of the Muammar Qadhafi regime must also come about. She welcomed all Government cooperation in that regard, commenting that success in ending impunity would encourage progress in other areas. She also assured the people of Libya that the United States would stand with them as they sought to build a just and lasting peace.
RAMLAN BIN IBRAHIM (Malaysia) also welcomed recent progress towards national unity in Libya and agreed that addressing impunity and enforcing the rule of law were important elements to restoring stability. It was crucial for the international community to continue to supply required assistance towards that end. Expressing particular concern over abuse of civilians, including migrants, he called for all stakeholders to work to unite Libya under to the rule of law to remedy the situation.
HELEN MULVEIN (United Kingdom) affirmed that the Prosecutor’s Office was playing an important part in restoring justice and the rule of law to Libya. Nonetheless, concern remained regarding continued abuses against civilians, some of which, she said, might amount to war crimes. Impunity must be ended for peace and stability to come about in the country. She urged all parties to comply with political agreements in order to restore security and allow the Prosecutor’s Office to do its work. Condemning the crimes of ISIL, she commended all those who had resisted the terrorist group. Expressing concern that Mr. Qadhafi had not yet been rendered to the Court, she called for cooperation with the Office. International assistance was needed stable, peaceful, non-sectarian country, particularly in the areas of security and judicial reform. She pledged the continued role of her country in that regard, including for relevant support to the Prosecutor’s Office.
VITALY CHURKIN (Russian Federation) stated that the Libyan Government was unable to function as a fully fledged executive body and that there was a proliferation of criminal groups, mass movements of people across the Mediterranean Sea and an ever-growing social, economic and humanitarian crisis. It was clear that the 2011 military intervention had created long-term, negative consequences and it would take patient, collective work to remedy the situation. The International Criminal Court’s most recent report did not contain any radically new information, and in fact, appeared to be more of a report from a monitoring mission. In that context, he questioned the relevance of such a dialogue with the Security Council. He also noted that in 2011, the Prosecutor’s Office had begun a preliminary criminal investigation, but had proceeded so quickly that ultimately, the evidence given was proven to be unfounded. For example, allegations of mass rape had been refuted by numerous reliable sources. Over five years, the Court had not brought any new cases, although it was very clear that the Libyan authorities were not the only ones that had committed actions that could fall under the provisions of the Rome Statute.
JULIO HELDER MOURA LUCAS (Angola) said insecurity, economic crisis, humanitarian disaster and political stalemate were the hallmarks of the situation in Libya. Terrorist groups were expanding their operations in Libya and taking advantage of the situation there. The Government of Nation Accord was struggling to gain legitimacy and extend its control beyond Tripoli. Despite the cooperation between the Court and the Libyan Prosecutor General, institutional stability and peace were the only way such cooperation could bear fruit. The Libyan leadership carried the fundamental responsible to move the political process forward with determination, courage and dignity. Among the many challenges that the authorities faced, the most pressing was to combat the expansion of extremist and terrorist groups, the proliferation of weapons and the large number of armed groups that targeted civils and perpetrated horrific crimes. He expressed concern that the current political and social context in Libya did not provide the necessary conditions to investigate and prosecute the perpetrators of crimes.
YURIY VITRENKO (Ukraine) said his delegation was concerned by the continued violations of international humanitarian law and human rights in Libya, including reports of torture and other forms of violence in detention centres, such as alleged crimes committed against foreign nationals by non-State actors. He called on the Libyan Government to ensure that those responsible were held accountable and provide any necessary assistance to the International Criminal Court as required by the relevant Security Council resolutions. He voiced his support for the Prosecutor’s proposal establishing an international contact group on justice issues to ensure perpetrators of crimes in Libya did not enjoy impunity.
PHILLIP TAULA (New Zealand) said the International Criminal Court could not be a panacea for Libya’s accountability challenges. As a court of last resort, it was never intended to replace national justice systems. Strengthening Libya’s ability to maintain the rule of law and address impunity was the only effective solution, he said, adding that the United Nations needed to be ready to help the Government of National Accord in that regard. On the Council’s relationship with the Court, he sympathized with the Prosecutor’s call for additional resources in order to take on more investigations in Libya. “If the Council creates new responsibilities for the [International Criminal Court], then the [United Nations] cannot simply wash its hands of the financial implications,” he added.
ALBERTO PABLO DE LA CALLE GARCÍA (Spain), expressing appreciation for the work of the Prosecutor’s Office, called for the Government of National Accord to cooperate with the Office as it gained capabilities. International support for the Office should also continue. Expressing concern over the continued activities of militias and terrorist groups in the country, he stressed that all grave crimes should be prosecuted. Emphasizing that impunity could not be tolerated, he commended all those who continued to document abuses, and called on all States to meet their international obligations to end the activities of of terrorist groups. The international community must support the Government of National Accord in its efforts to restore a State based on law and human rights.
TANGUY STEHELIN (France) welcomed the continued efforts of the Prosecutor’s Office, while acknowledging the security challenges it faced. He stressed that the resolution of the crisis in Libya could only be political. He called for continued support to bring about national unity, as well as support for the efforts of the Court to bolster the rule of law. National cooperation with the Court was critical in that regard. In particular, cooperation was needed in the case of Mr. Qadhafi and his surrender to the Court. He concurred that a comprehensive approach to Libya was needed that included all partners and sectors, in order for stability to be restored. The principle of complementarity in judicial matters was particularly important in order to help build national capacity in the rule of law.
RAFAEL DARÍO RAMÍREZ CARREÑO (Venezuela), noting his country was a State party to the Rome Statute, said the fight against impunity for the most serious crimes was based on international cooperation, an essential aspect of achieving the Court’s objectives. The strengthening of the international criminal justice system was dependent upon States parties refraining from taking measures that would undermine the Court’s important functions in fighting impunity. The instability due to the collapse of the Libyan State following the 2011 military intervention had created long-term negative impacts, the brunt of which had been levelled upon the Libyan people who were “thirsting for peace and tranquillity”. Due to the lack of a solid judicial system in Libya, the judicial system there was unable to prosecute those that committed the most serious crimes. Voicing support for Libya’s efforts to strengthen the Government of National Unity, he stressed that those that had been accused of committing crimes must be handed over to the International Criminal Court for prosecution.
TAKESHI AKAHORI (Japan) said his country was committed to the establishment of the rule of law and the importance of accountability. He recalled that the Security Council had unanimously adopted resolution 1970 (2011), through which it referred the situation in Libya to the Office of the Prosecutor, thereby obligating the Libyan authorities to fully cooperate with the Court’s work. The security situation in Libya remained unstable, and in that context, it was not difficult to imagine the difficulties of the Prosecutor’s work in the country. He encouraged the relevant authorities of concerned countries to make further efforts to cooperate with the Court. He stated he was disturbed by continued violations of international humanitarian law and human rights in Libya, calling them crimes which could not go unpunished, including those committed by extremist and terrorist organizations.
AMR ABDELLATIF ABOULATTA (Egypt), Council President, spoke in his national capacity, noting that the Prosecutor’s report detailed the many challenges facing the Court as it carried out its work in Libya. The Government there must consult with the Court with regard to the surrender of Mr. Qadhafi, while all forms of assistance should be given to the Libyan Government to ensure it was in a position to honour its commitments to the Court. All crimes of torture must end in Libya. The international community must help the Government of National Accord to design a global strategy to address the vicious crimes that had been committed in Libya and the authorities there must be assisted so they could be in a position to bring justice to the victims. He noted that the Court had expressed an interest in expanding its work to include crimes committed by extremist and terrorist groups. In that regard, the Court’s efforts must be considered part of a broader framework pursued by the international community to bring terrorists to justice and ensure there was no impunity for the horrendous crimes they were perpetrating.
IBRAHIM O. A. DABBASHI (Libya) reaffirmed his country’s full determination to work with the Court to end impunity for crimes covered by the Rome Statute, despite the challenges the legal authorities were still confronting. The Government at this stage could not ensure judicial fairness in areas not under its authority, but it would spare no effort to investigate all crimes and punish all perpetrators when circumstances allow. For that to happen, judges and other officials must be assured that they did not face retribution, among other security requirements, in order to ensure the rule of law.
For the security conditions to improve, he stressed, the Government must have the means to fight ISIL, including arms, while munitions must be kept out of the hands of militias. Any such distribution of arms would only weaken the Government of National Accord. In the case of Mr. Qadhafi, he emphasized that the Court and any other foreign entity had no right to deal with national individuals without working through the national Government. The surrender of Mr. Qadhafi fell under the sole jurisdiction under the Libyan Government and judicial authorities. As the Government was not in control of relevant prisons, the matter could not currently be resolved.
While stating his supported the work of the Prosecutor’s Office, including expanding its investigations when security allowed, he underscored that security would not hold as long as militias continued to have access to resources. At the same time, international assistance was needed for efforts to reunite the Libyan Army. In that regard, provisions of the agreements on Libya must be fulfilled strictly, starting with the security provisions that included supplying weapons to the police force. Without security, everything else had no value.