State Cooperation with International Criminal Court Vital to Ensure Justice for Victims of Atrocity Crimes in Libya, Prosecutor Tells Security Council

SC/12813
8 May 2017
7934th Meeting (PM)

State Cooperation with International Criminal Court Vital to Ensure Justice for Victims of Atrocity Crimes in Libya, Prosecutor Tells Security Council

State cooperation with the International Criminal Court was crucial to ensuring justice for victims of mass atrocity crimes committed during 2011 events in Libya, its Chief Prosecutor said today, pressing the Security Council for assistance in the arrest and surrender of those allegedly responsible.

“We all have our respective roles to play and we must deliver on our joint commitment to end impunity for Rome Statute crimes in Libya,” said Fatou Bensouda, presenting her thirteenth report on the situation.

Indeed, she said, the arrest warrant against Al-Tuhamy Mohamed Khaled, former head of the Internal Security Agency under Muammar Gaddafi, had recently been made public.  Her Office alleged that he was responsible for the crimes against humanity of imprisonment, persecution and torture, as well as the war crimes of torture, cruel treatment and outrages upon personal dignity.  Amid reports that Mr. Al-Tuhamy was residing in Libya, she urged all States to take immediate action to verify his whereabouts and facilitate his arrest.

She also renewed her call on the Government of National Accord to take steps to transfer Saif al-Islam Gaddafi to its custody so that Libya could surrender him to the Court, in line with its international legal obligations.  With the case of Abdulah al-Senussi on appeal before the Libyan Supreme Court, she said a 21 February report by the United Nations Support Mission in Libya (UNSMIL) and the Office of the United Nations High Commissioner for Human Rights (OHCHR) had found that the trial had fallen short of international fair trial standards.

She expressed alarm over reports that migrants were being held in inhumane conditions, with killings, rape and torture allegedly commonplace, and over credible accounts that Libya had become a marketplace for human trafficking.  Her Office was exploring the possibility of an investigation into migrant-related crimes.  However, without adequate resources, its work had been hampered and its ability to impact the climate of impunity diminished.  She pressed the Council to support efforts aimed at providing it with financial assistance.

In the ensuing debate, delegates commended Libya’s Prosecutor-General for its cooperation with the Court, decrying that worsening security conditions had hampered criminal investigations.  Several underscored the need for stronger domestic institutions and commitment by factious political groups to create an environment for reconciliation. Justice must be a priority, several said, with the United Kingdom’s delegate urging relevant actors to help the Prosecutor-General build the rule of law.

Italy’s delegate expressed hope that security conditions would improve enough for the Prosecutor to visit Libyan territory.  “Trafficking must not only be stopped,” he said. “Traffickers must be brought to justice and punished”.

Egypt’s delegate said the Prosecutor must seek information from reliable sources on the true nature of crimes committed.  The Court should not focus entirely on crimes allegedly committed by one party or faction.  It must investigate all crimes under its mandate, including by terrorist groups that received support from certain States.

Along similar lines, the representative of the Russian Federation cited the unsealing of indictments as proof of a “lopsided approach”.  The Court lacked a desire to investigate all parties, including rebels, and shied away from looking into civilian casualties caused by North Atlantic Treaty Organization (NATO) airstrikes.  The report also lacked “the slightest hint” of crimes committed by Islamic State in Iraq and the Levant (ISIL/Da’esh).  The only way to move from crisis to unification was through the broadest possible inter-Libyan dialogue, under the auspices of the United Nations and with participation by regional players.

In that context, France’s delegate acknowledged the Court’s desire to broaden its work to include crimes committed since 2011 and those allegedly committed by terrorist groups, as well as crimes related to the trafficking of persons.  The representative of the United States, meanwhile, expressed support for the political agreement framework.

Libya’s representative pointed to complementarity between the national courts and the International Criminal Court in fighting impunity, stressing that delays in prosecutions had been due to the security situation.  To ensure justice for all, he urged support for the Government of National Accord, as well as for the army and police as they worked to extend State authority across all territories.

The humanitarian situation of illegal immigrants in Libya was indeed tragic, he said, but also the direct result of insecurity and the spread of militias and armed groups.  In future reports, he hoped to see information on efforts under way to fight human trafficking in both the north and south Mediterranean.

Also speaking today were representatives of Sweden, Bolivia, Senegal, Ukraine, Japan, Ethiopia, Kazakhstan, China and Uruguay.

The meeting began at 3 p.m. and ended at 4:43 p.m.

Briefing

FATOU BENSOUDA, Prosecutor of the International Criminal Court, presenting her thirteenth report on the situation in Libya, said her Office had made steady progress in its investigations, notwithstanding the prevailing security situation.  Undeterred, her office continued to employ innovative methods to collect evidence from outside the country through secure channels, efforts that had been made possible by cooperation from States and assistance of Libya’s Prosecutor–General.  Her Office would continue to explore options for its investigators to resume activities on Libyan territory.

Recalling that an arrest warrant against Al-Tuhamy Mohamed Khaled, the former head of Libya’s Internal Security Agency under Muammar Gaddafi, had recently been made public, she said her Office had alleged that he was responsible for crimes against humanity of imprisonment, persecution and torture, as well as the war crimes of torture, cruel treatment and outrages upon personal dignity.  In issuing the warrant, the Pre-Trial Chamber had found reasonable grounds to believe that the Internal Security Agency he led had arrested and detained persons perceived to be opponents of Mr. Gaddafi’s rule, who allegedly had been subjected to electrocution, sexual violence, solitary confinement and deprivation of food and water, among other things, in various locations throughout Libya.

Noting that the warrant’s unsealing would enhance the chances of its execution, she said her Office had become aware of reports that Mr. Al-Tuhamy was residing in Libya.  “State cooperation with the International Criminal Court, and with this Council, is crucial to ensuring justice for these victims can be realized,” she said, urging Libya and all States to take immediate action to verify Mr. Al-Tuhamy’s whereabouts and facilitate his arrest, and pressing the Council to expeditiously execute the arrest warrant.

She also renewed her call on the Government of National Accord to take steps to transfer Saif al-Islam Gaddafi to its custody so that Libya could surrender him to the Court, in line with its international legal obligations.  Recalling that in July 2015, the Tripoli Court of Assize had issued its judgement in the trial of Abdulah al-Senussi, Mr. Gaddafi and 35 former members allied with Muammar Gaddafi in relation to crimes allegedly committed in 2011, she said both Saif al-Islam Gaddafi and Mr. Al-Senussi had been convicted and that the case of Mr. Al-Senussi was on appeal before the Libyan Supreme Court.

A 21 February report by the United Nations Support Mission in Libya (UNSMIL) on the conduct of that trial found that the trial had fallen short of international fair trial standards, she said, and her Office was considering it, along with the full Libyan trial judgement, to determine whether new facts had arisen which negated the basis on which the Pre-Trial Chamber had found Mr. Al-Senussi’s case inadmissible before the Court.

More broadly, she said her Office continued to examine information from non-governmental organizations and others about alleged civilian killings, abductions, detentions, torture and sexual violence.  It continued to collect and analyse information on serious and wide-spread crimes allegedly committed against migrants, she said, also expressing alarm over reports that migrants were being held in inhumane conditions, with killings, rape and torture allegedly commonplace, and over credible accounts that Libya had become a marketplace for human trafficking.

As the situation was dire, her Office was exploring the possibility of opening an investigation into migrant-related crimes in Libya, should the Court’s jurisdictional requirements be met.  It had followed closely events in Ganfouda, Benghazi, with reports indicating that on or around 18 March, forces of the Libyan National Army had taken over Ganfouda, following which “disturbing” video had emerged appearing to depict those forces committing summary executions of detainees.

Acknowledging “excellent” cooperation from a network of States, organizations and entities, notably the Libyan Prosecutor-General, she urged those States that had not responded to requests for cooperation to do so.  Finally, she said that without adequate resources, the Court’s crucial work was hampered and its ability to impact the climate of impunity diminished.  She called on the Council to support efforts aimed at providing it with financial assistance by the United Nations.

Statements

AMR ABDELATTIF ABOULATTA (Egypt) stressed that the Court was obligated to work through the Libyan authorities and not through individuals or entities that did not represent the Libyan State.  All necessary assistance should be given to the Libyan Government to ensure it could meet its commitments.  There were major challenges in Libya, including obstacles to the investigation and the collection of evidence.  He welcomed the cooperation that the Office of the Prosecutor had been receiving from Libya’s Prosecutor-General, while stressing that the Office of the Prosecutor must seek information on the true nature of crimes committed in Libya and that information should come from reliable sources.  The Office’s efforts should not focus entirely on allegations of crimes committed by one party or faction.  The Court must investigate all crimes under its mandate, including crimes committed by terrorist organizations that were receiving support from certain States.  Egypt believed that the international community should assist Libya to ensure that it devised a comprehensive strategy to address the crimes committed there and to ensure justice and accountability.

OLOF SKOOG (Sweden) noted that since the onset of the conflict in Libya, civilians had borne the brunt of the conflict, and continued to pay a bitter price as a result.  There were widespread human rights violations and abuses, and breaches of international humanitarian law by all parties, including against children.  The Office of the Prosecutor should be equipped to do the work that was needed, and its call for adequate resources and the full backing of the Security Council and all States must be heeded.  It was encouraging to hear of the cooperation being provided by Libya’s Prosecutor-General to the Office of the Prosecutor.  Sweden supported the Office of the Prosecutor’s efforts to continue monitoring human rights violations in Libya, including allegations of targeting of medical facilities, which was of great concern, and reports of arbitrary detention and sexual violence against women in detention centres.  He encouraged the Office of the Prosecutor to apply an integrated gender-perspective in its upcoming reports, including through the provision of aggregated gender data.

SEBASTIANO CARDI (Italy) said the Court could bring positive developments, especially if the Council remained united in supporting Libya, its institutions and people, ensuring that justice was done in a fair and impartial manner.  He called for international assistance to help Libyan authorities promote justice and accountability, stressing that while the cooperation of many countries to the Court was a positive sign, he, nonetheless, noted with concern the Court’s financial constraints and encouraged voluntary contributions to ensure that justice would be rendered.  In the Gaddafi case, he expressed concern that the transfer to the Court was pending and encouraged compliance with the Court’s request.  The Court continued to monitor the Al-Senussi case.  As for the recently disclosed case, he had taken note of the information in the report and called for the arrest and surrender of the fugitive.  As for charges of torture in one particular prison, he encouraged the Office of the Prosecutor to monitor domestic proceedings to ensure that domestic and international obligations concerning detainees were upheld.  Dialogue between the Court and national authorities must continue, he said, stressing that “trafficking must not only be stopped; traffickers must be brought to justice and punished”.  He expressed hope that security conditions would improve for the Prosecutor to visit Libyan territory.

SACHA SERGIO LLORENTTY SOLÍZ (Bolivia) called on the Government and parties involved to use proper communication channels so that the Prosecutor could continue the investigations.  Countries in the region also should cooperate with the Court, he said, expressing hope to see improvements in the cases under investigation.  He had noted the report’s references to extrajudicial killings and arbitrary trials, stressing that parties must meet their international legal obligations and calling for an investigation into such charges so that perpetrators would be brought to justice.  He expressed concern over the worsening situation for the 380,000 migrants of more than 30 nationalities in Libya, many of whom, in trying to escape to Europe, had become victims of abuse, torture and other violence.  Migrants were being arbitrarily held in Libya without due process or legal assistance in inhumane conditions, with armed groups exerting control over detention centres, meaning they had no protection against abuse.  He called on the Court to investigate those acts and inform the Council about whether migrants were being traded as slaves.  Moreover, the Council should ensure that the Court had the necessary financial resources to address the cases referred to it, he said, calling on States that had not done so to ratify the Rome Statute.

SHERAZ GASRI (France) expressed concern that the difficult security context in Libya made the continuation of investigations in that country extremely difficult.  Much more needed to be done to end impunity.  The Security Council must support the Court, as well as the efforts of the United Nations system, including the UNSMIL.  France recalled that the continuation of the Prosecutor’s investigation required the full cooperation of all stakeholders and must be conducted through an integrated approach.  In that context, it was crucial to sure up cooperation with all States, regardless of whether they were States parties to the Rome Statute, and ensure that requests from the Office of the Prosecutor were responded to as quickly as possible.  That cooperation would be all the more key given that such complex, transnational investigations must be conducted in a coordinated fashion.  Her delegation took note of the Office of the Prosecutor’s desire to broaden its work to include additional crimes committed since 2011 and crimes allegedly committed by terrorist groups, as well as crimes related to the trafficking of persons.

FODÉ SECK (Senegal) said his delegation supported the mandate of the Court, namely, its efforts to combat impunity across the globe, including in Libya.  He welcomed the cooperation provided by the Office of the Prosecutor-General of Libya to the Court and urged the international community and the Security Council, in particular, to assist the Office of the Prosecutor as she continued her investigation.  Those in power in Libya must comply with resolution 1970 (2011) and cooperate with the Court to surrender to justice any accused individual.  The security situation remained extremely unstable in Libya due to armed groups and terrorist activities, which created difficulties in conducting necessary investigations.  He noted that the Prosecutor’s Office had called for the unsealing of arrest warrants handed down in 2017 before the Pre-Trial Chamber, which demonstrated great progress.  The political situation in Libya remained extremely complex and the security situation tenuous and unstable, which required the full implementation of Security Council resolutions on Libya.

YURIY VITRENKO (Ukraine) noted that many warring parties continued committing serious crimes and grave violations of human rights, including executions, killings, abductions, torture, unlawful detentions and discretion of corpses, among other crimes.  The practice of imprisonment without trial for an indefinite period of time, outside the legal fold, continued to be wide-spread.  The difficult security situation in Libya, however, should not be an excuse for failing to cooperate with the Court, or for letting serious crimes to be committed during hostilities.  Effective investigations and prosecutions could only be achieved through cooperation from States and other actors.  However, it was not only a lack of cooperation and delays in responses to the Court’s requests for assistance that impeded investigations in existing and new cases, but also the climate of insecurity and impunity that continued to stand in the way of investigative activities in the country.

TAKESHI AKAHORI, Minister for Political Affairs of Japan, expressed continued support for the Presidency Council and the Government of National Accord as the legitimate authorities under the Libyan Political Agreement, which was a framework that should be upheld.  The success of the Court depended heavily on the cooperation of States, due to the Court’s lack of enforcement authorities.  Without the cooperation of States, the Court could not function effectively and justice could not be served.  The escalation of violence and ongoing instability in Libya, particularly in the southern region, were troubling developments and made it more difficult for the Prosecutor’s investigation to progress.  Japan was also concerned by the deterioration of human rights and the humanitarian situation in Libya.  Human trafficking through and from Libya, including the smuggling of migrants, was particularly alarming.

MAHLET HAILU GUADEY (Ethiopia) expressed deep concern that killing, torture and arbitrary detentions continued amid other ordinary crimes due to the weakness of Libyan judicial institutions.  Refugees and migrants, among others, continued to suffer and all perpetrators, including Islamic State in Iraq and the Levant (ISIL/Da’esh), must be held accountable, with the killing of civilians condemned in the strongest terms.  Ethiopia supported the African Union position on combating impunity while safeguarding peace, security and stability, as well as the sovereignty and territorial integrity of Member States.  Ensuring the rule of law must be a priority and the international community must support such efforts.  Continued human rights violations could not be sustainably addressed until all Libyan actors found a solution to the crisis.  She urged them to address obstacles to implementing the Libyan Political Agreement and to work coherently towards a nation-wide reconciliation process that could bring forth a political process.  The main responsibility for ensuring peace was in the hands of Libyans themselves and she urged them to seriously engage to end the crisis.

BARLYBAY SADYKOV (Kazakhstan) said the security situation in Libya had created grounds for the impunity of terrorist and armed groups.  He noted with concern the increasing numbers of migrants inhumanely detained, tortured and sexually assaulted, urging all actors to refrain from unlawfully targeting refugees and migrants.  Effective and credible Government was crucial to Libya’s ability to restore the rule of law and provide justice for past violations.  To that end, international support was vital for restoring stability and security, which required coherence among Libyan institutions.  He commended mediation efforts by regional organizations, including the African Union, to foster a political process in Libya.

ZHANG DIANBIN (China) said his country had closely followed the situation in Libya and supported the Libyan people’s efforts to pursue unity and reunification.  All efforts must be Libyan-led and Libyan-owned, and relevant Security Council resolutions should serve as the basis for all negotiations.  The international community should continue to provide support and assistance to the country.  China’s position regarding the Court remained unchanged.

EVGENY ZAGAYNOV (Russian Federation) said there continued to be weak progress with regard to the main tracks of the Libyan dossier.  The unsealing of the handed down indictments did not constitute signification progress, rather it was further evidence that the Court continued with a lopsided approach.  Efforts to investigate all parties to the conflict remained absent, including the crimes of the rebels.  The Court continued to shy away from looking into civilian casualties due to North Atlantic Treaty Organization (NATO) airstrikes.  It was surprising that the document lacked the slightest hint of Da’esh crimes, despite the fact that previous reports indicated that those crimes were being investigated.  It would seem that the Prosecutor did not think the actions of terrorist organizations warranted investigation.  The authors of the report continued to step on the political plain.  The report made it sound as if the Da’esh hotbed had been extinguished in certain cities, which was a lopsided picture and created the image that within Benghazi there were no terrorists.  The assessment of his delegation had been made clear in previous briefings and that position had not changed.  The only way to move from crisis to unification remained the broadest possible inter-Libyan dialogue, under the auspices of the United Nations, and with the participation and support of regional players.

STEPHEN TOWNLEY (United States) called for collective efforts to end impunity for arbitrary detention and extrajudicial killings, which, in turn, could reinforce the rule of law in Libya.  He welcomed meetings by Libyan leaders in Abu Dhabi and Rome, and expressed support for the political agreement framework, stressing that all Libyan parties and leaders must engage in dialogue and find compromise.  He expressed concern over the terrorist threat in Libya, stressing that terrorists must not be allowed to re-establish themselves in the absence of strong Libyan institutions and leadership.  He stressed the importance of complying with international law during counter-terrorism operations, pressing all actors to facilitate the transfer of Mr. Gaddafi to The Hague so he could stand trial for alleged crimes against humanity.  He noted the Court’s decision to unseal the warrant for Mr. Al-Tuhamy and urged accountability for atrocity crimes.  The United States was committed to supporting Libyans as they struggled for democratic governance and looked forward to continued collaboration with the Council to that end.

HELEN MULVEIN (United Kingdom) said Libya’s political institutions must work together to break the political deadlock, while its political and social groups must seize the momentum of meetings by Libyan leaders to set out a path towards reconciliation and unity.  She expressed deep concern over violence among armed groups, especially reported human rights violations by combatants in Benghazi, including on civilians and medical facilities.  Noting that the Prosecutor was considering the launch of an investigation into criminal acts against migrants, she supported the call for Libyan authorities to do their utmost to transfer Mr. Gadaffi and consult with the Court on issues impeding his transfer to The Hague.  She urged relevant actors to assist the Libyan Prosecutor-General in building the rule of law in Libya.  She also urged the Council to facilitate information leading to the surrender of Mr. Al-Tuhamy to the Court, as he and others responsible for war crimes must not become fugitives from justice.  The United Kingdom was committed to working with others to ensure the Court had the necessary resources, while ensuring that its budget was as streamlined as possible.

ELBIO ROSSELLI (Uruguay) urged Member States to become State Parties to the Rome Statute and noted the important role played by the Court to bring justice when national courts were incapable of doing so.  Accountability for serious crimes, irrespective of who committed them, must continue to be a priority goal in the work of the Security Council.  The most recent report on Libya did not bring with it encouraging signals, as the Government there continued to see its authority tested on the national level.  The many challenges being faced by Libya required a serious response by the new Government, including with regard to the threat posed by Islamic extremist violence and the humanitarian emergency created by the large number of migrants in the country.  The situation in Libya must not worsen.  Rather, there must be a move towards a real democratic transition and lasting peace.

ELMAHDI ELMAJERBI (Libya) stressed Libya’s commitment to complementarity between national courts and the International Criminal Court in fighting impunity and working to ensure justice.  In that regard, Libya continued to closely cooperate with the Court.  It was well known that there had been delays in the prosecution of certain suspects, which was unfortunately due to the security situation in the country.  Achieving justice was not limited to a certain case or suspect, but, rather, must include everybody, regardless of the identities of the perpetrator or victim.  To ensure justice for all, there was a need for the international community to support the Government of National Accord, as well as law enforcement institutions, including the army and police force, as they attempted to extend State authority across all territories.  He emphasized that the national courts had generated a sense of justice, which was a cornerstone for national reconciliation and had positive impacts on the country’s stability and security.  Nevertheless, the efforts of the national courts did not mean they would stop cooperating with the International Criminal Court.

It was well known that human trafficking was a crime, and fighting that scourge would require close cooperation between countries, as such crimes were being conducted by transnational criminal networks, he said.  Various reports had shed light on alleged crimes that were a direct result of human trafficking, such as rape, arbitrary detention and torture, as well as other crimes against humanity.  The humanitarian situation of illegal immigrants in Libya was indeed tragic, but was also the direct result of the insecurity within the country, as well as the spread of militias and armed groups.  It was important to note that Libya was a transit country and he hoped to see in future reports more information on the efforts under way to fight human trafficking networks in the both the north and south of the Mediterranean equally.

For information media. Not an official record.