14 November 2013
Security Council
SC/11175

Department of Public Information • News and Media Division • New York

Security Council

7059th Meeting (AM)


Security Council’s Support Critical in Untangling Networks Responsible


for Ongoing Instability, Says International Criminal Court Prosecutor


Justice Would Be Respected, Delegate States amid Queries about Judicial Competence


The support of the Security Council and the international community were crucial in the “colossal” task of untangling the networks responsible for ongoing instability in Libya, where the security situation since the 2011 uprising remained volatile and precarious, the Prosecutor of the International Criminal Court told the 15-member body today in her latest briefing on the North African country.


“ Libya’s challenges are our own,” said Fatou Bensouda, “and we will all share in the successes or failures of these efforts to bring justice to Libya’s victims, and peace and security to its people.”  Car bombings, abductions and assassinations of public officials had hampered her Office’s ability to operate and she welcomed efforts to rebuild the military and law enforcement agencies.  She also was greatly concerned that thousands of detainees remained in uncertain conditions, amid allegations of torture and killings.


To be sure, Libya had come a long way since 2011, she said, and its efforts continued to pave the way for a more promising future.  It aimed to be a stable, democratic society that observed the rule of law and punished the perpetrators of crimes that had “shaken the conscience of humanity”.  Promising gains included the creation of a draft law that would make rape during armed conflict a war crime.


Further, she pointed out, Libya was setting an example for how States could invoke the principle of complementarity, which protected their sovereign right to investigate and prosecute their nationals.  On 11 October, the Pre-Trial Chamber had found that the Abdullah al-Senussi case was inadmissible before the Court, as Libya had met the statutory criteria for stopping her Office from pursuing it.  The challenge now was for Libya to show that Al-Senussi, the brother-in-law of late Libyan leader Muammar Qadhafi, would receive a fair, impartial and speedy trial that respected his rights.


By contrast, she noted that the Pre-Trial Chamber had ruled the case of Saif al-Islam Qadhafi, the son of the former leader, as admissible before the Court, on grounds that Libya had failed to meet the legal criteria for making it inadmissible.  Libya was now obliged to surrender Mr. Qadhafi to its custody.  In addition, complementary efforts were needed to bring to justice the many others alleged to have committed crimes since February 2011.


With that in mind, her Office and Libya had concluded a burden-sharing Memorandum of Understanding, whereby her Office would prioritize the investigation and persecution of suspects outside of Libya, while Libya would investigate those inside its territory.  Her Office would need telephone intercepts and follow-up on transfers of funds to establish the movements of suspects — information that could be accessed only with the assistance of States.


When the floor was opened for debate, many speakers supported the Court’s efforts to bring to justice the perpetrators of the most serious crimes in Libya, and praised the Memorandum of Understanding as an important move that would build confidence and help close the impunity gap.


France’s delegate said the creation of a Fact-Finding and Reconciliation Commission would help respond to allegations of crimes, such as those committed in Misrata and Tawergha during the 2011 armed conflict.


Taking a different view, the representative of the Russian Federation called for a greater explanation on the diametrically opposed decisions made by the Court on the jurisdiction and admissibility of the two cases being discussed.  Expressing serious concern over the Libyan authorities' ability to conduct a free and fair trial, he also said that the central authorities lacked control of the State.  It was unclear how reconciliation and justice could be pursued in that situation.


Others emphasized that Libya had proven that its judicial system was competent to handle trials, as demonstrated by the Court’s decision not to accept the Al-Senussi case.  Morocco’s delegate supported Libya's ability to conduct just trials of officials and establish justice for the victims.  He called for international support in all of Libya’s attempts to establish justice, promote the rule of law and face security threats, whether from within or outside the country.


“ Libya is very attached to the rule of law,” despite the prevailing circumstances, that country’s representative insisted.  Emphasizing that his Government would cooperate with the Court as much as possible, he also pointed out the great progress that had been made in reforming its judiciary.


In regards to the Abdullah al-Senussi and Saif al-Islam Gadhafi cases, he stated that the families of victims wanted to see justice brought to them.  The Libyan judiciary had started trials against those perpetrators, he said, underscoring that the international criteria for justice would be respected.


He also stated that he fully understood the concerns over "excesses" that had taken place in detention centres, despite that they were isolated events.  Human rights violations had declined, thanks to the recently passed law on torture and other crimes.


Also speaking today were the representatives of Togo, Guatemala, Azerbaijan, Australia, United Kingdom, Argentina, Rwanda, Republic of Korea, Pakistan, United States, Luxembourg and China.


The meeting began at 10:10 a.m. and ended at 11:55 a.m.


Background


The Security Council today would meet for its semi-annual briefing on the situation in Libya by the Prosecutor of the International Criminal Court and consider recent developments that country.


Briefing


FATOU BENSOUDA, Prosecutor of the International Criminal Court, said Libya had come a long way since the 2011 uprising which had paved the way for Libyans to rebuild their country towards a more promising future.  While the “new” Libya had seen notable successes — including the holding of the first democratic elections in half a century — it still faced formidable challenges.  The security situation was volatile, marked by car bombings and assassinations of public officials.  That had hampered her Office’s ability to operate and she welcomed initiatives aimed at helping to rebuild military and law enforcement agencies. She also called on all States to help Libya become a full-fledged, secure and democratic society that adhered to the highest standards of justice.


Indeed, she said, Libya aimed to become a stable, democratic society that observed the rule of law and punished perpetrators of crimes that shook the conscience of humanity.  Although, such aspirations had yet to be realized, there had been promising gains, including the draft law that would make rape during armed conflict a war crime.  Nonetheless, she was greatly concerned that thousands of detainees remained in uncertain conditions, amid well-founded allegations of torture and even killings.  It was incumbent on the ministers of Justice, Interior and Defence to ensure that detainees were transferred to Government-controlled detention facilities where they could be charged, with their due process rights respected, or released.  Torture and inhumane treatment of prisoners should have no place in the new Libya.


Equally disturbing were the simmering tensions regarding the Tawergh minority issue, she said, stressing that “those who seek to defend the revolution and see to it that it succeeds are at real risk of burying it if they do not take concrete and immediate steps on this issue”.  The Fact-Finding and Reconciliation Commissions to be established must bring all parties together to resolve that issue sooner rather than later.  Further, recalling that Libya had embraced the Rome Statute process and had chosen to engage with the Court, she said the admissibility challenges before the Court were testing the application of the Statute’s provisions in an unprecedented manner.


Libya, she continued, was setting an example for how States could invoke complementarity that protected their sovereign right to investigate and prosecute their nationals.  On 11 October, the Pre-Trial Chamber had issued its decision on the admissibility of the Abdullah al-Senussi case, finding the case inadmissible before the Court.  The Chamber was satisfied that Libya had met the statutory criteria for stopping her Office from continuing its investigations and prosecution of Al-Senussi.  There was no legal basis for appeal.  The challenge now was for Libya to show that Al-Senussi would receive a genuinely fair, impartial and speedy trial that respected his rights.  The Security Council must ensure that justice was done.


However, she pointed out, by contrast was the case of Saif al-Islam Qadhafi, where the Pre-Trial Chamber ruled the case admissible before the Court on the grounds that Libya had failed to meet the legal criteria for making it inadmissible.  Libya, in subsequent submissions, had sought further time to provide more information.  In the meantime, the Court had reiterated the Government’s obligation to surrender Mr. Qadhafi to its custody.  It was fundamentally important for the Council to urge Libya to comply with the decisions of the Chamber, even when they were “inauspicious” to the position advanced by the Government.  The obligation to surrender persons against whom arrest warrants had been issued must be respected.


She went on to say there were many others who were alleged to have committed crimes since February 2011.  It was impossible for the Court alone to investigate and prosecute all perpetrators; neither could Libya undertake that “demanding” task alone.  She called for complementary efforts that were actively supported by the international community.  To that end, her Office and Libya had concluded a burden-sharing Memorandum of Understanding.  While her Office would prioritize its investigation and prosecution of those outside Libya, and who were largely inaccessible to Libyan authorities, Libya would prioritize investigations of suspects inside Libyan territory.  To be sure, that agreement did not relinquish either the Court or Libyan courts of their respective jurisdictions.


The Council’s support, she said, would be crucial for the “colossal” task of collecting evidence to untangle the modus operandi of the networks responsible for committing crimes.  Her Office would need telephone intercepts and sustained follow-up on transfers of funds to establish the movements of those under investigation.  She requested States’ cooperation in facilitating the smooth arrest and surrender of those against whom warrants would be issued.  The key was to send the message that impunity would not be allowed to reign unchecked.  She hoped the Memorandum of Understanding would pave the way for closing the impunity gap.


“ Libya’s challenges are our own,” she emphasized, noting that everyone shared in the country’s successes or failures to bring justice.  She encouraged the Libyan Government to make public a comprehensive strategy to address serious crimes committed, regardless of who was the perpetrator or the victim.  Libya’s partners must step up to the challenge of making the Court’s mandate in Libya — and that of the Council — efficient.


Statements


KODJO MENAN (Togo), acknowledging the briefing’s details on the cooperation between State and non-State entities with the International Criminal Court in bringing the perpetrators of the worst crimes to justice, called for an “innovative solution” on securing the safety and well-being of the Libyan people.  Welcoming the recent memorandum of understanding between the Prosecutor’s Office and the Government, he said that agreement should not validate the amnesty announced by the Government.


He further called for a speedy agreement on modalities of bringing the perpetrators to justice.  The decisions of the Court on the jurisdictional admissibility of the two cases needed to be respected.  He expressed hope that the competent Court would rule without delay to bring a rapid conclusion of the case.  As well, he hoped that the new law on transitional justice would be quickly implemented for a fair trial, with a view towards national reconciliation.  Underscoring Libya’s primary responsibility to provide security to its people, he urged the international community to help the Government in accordance with relevant provisions of the Charter.


EVGENY ZAGAYNOV ( Russian Federation) supported the Court’s efforts to bring to justice the perpetrators of the most serious crimes in Libya.  However, he called for a greater explanation on the diametrically opposed decisions made by the Court on the jurisdiction and admissibility of the two accused.  Expressing serious concern over the Libyan authorities’ ability to conduct a free and fair trial, he emphasized that the report failed to detail the abuses perpetrated by the rebels, which were still continuing.


The central authorities lacked control of the State, he said, adding that it was unclear how reconciliation and justice could be pursued in that situation.  The Court should not confine itself to the inner circle of former rulers, but should expand its focus to include the abuses by the rebels, as well as the indiscriminate use of force during the North Atlantic Treaty Organization (NATO)-led intervention.  The recent incident involving Court officials was not helpful for cooperation, he pointed out.


ABDERRAZZAK LAASSEL ( Morocco), welcoming the Memorandum of Understanding between Libya and the Court, said some investigations would take place in the context of national reconciliation and transitional justice.  Libya’s competence had been shown when the Court decided not to accept the Abdullah al-Senussi case, believing that Libyan authorities would be able to conduct a trial.  His delegation supported Libya’s ability to conduct just trials of officials and establish justice for the victims, and he called upon the international community to support Libya in all attempts to establish justice, promote the rule of law and face security threats, whether from within or outside the country.  He also urged the Council and the Friends of Libya to provide assistance to the country as it addressed, in a manner that respected human rights, a variety of issues, including arms smuggling, border control, and immigration, among others.  A free and democratic Libya was crucial for facing the challenges of terrorism in sub-Saharan Africa.


GÉRARD ARAUD ( France) said Libya was in transition following 42 years of dictatorship.  Libyans had shown their unwavering determination in the post-revolutionary context, especially in having requested to try Abdullah al-Senussi and Saif al-Islam Qadhafi.  That was a brave decision, highlighting Libya’s willingness to shoulder their responsibilities.  The Court believed Libya could handle the Al-Senussi case.   Expressing support for investigations into crimes committed in Libya by those close to “Qadhafi”, he welcomed all efforts to establish a global strategy to end impunity in that country.  As well, the creation of a Fact-Finding and Reconciliation Commission could help respond to allegations of crimes, such as those committed in Misrata.  While commending the new draft law that made rape during armed conflict a war crime, he regretted allegations of torture against detainees.  Resolution 1970 (2011) was an example of the Council’s unity.  It was at the heart of a process that would prosecute criminals, one that required Libya’s full cooperation with the Prosecutor’s Office and the Council.


GERT ROSENTHAL ( Guatemala) said the Libyan authorities had an obligation to respect the verdict of the International Criminal Court and the Prosecutor’s Office.  Therefore, the Government should demonstrate its full cooperation to ensure work progressed smoothly.  The recent memorandum between the two parties would lay the foundation for a more direct relationship between the Court and Libya, he said, adding that it was vital for both to acquire the cooperation of State parties and non-State parties to the Rome Statute.  He also noted that the Libyan authorities were taking an interest in the process and the progress that had been made in the two cases.  As the transition process advanced, he hoped there would be greater consolidation of institutions to bolster human rights and prevent impunity.  The lack of security, marked by attacks and abductions, was grave and must be ended in order to promote justice and reconciliation.  The Council could play a fundamental role in helping resolve that problem through capacity-building of institutions.  He called for investigations into all crimes committed in Libya.


TOFIG MUSAYEV ( Azerbaijan) welcomed the Libyan Government’s commitment to restore the rule of law and ensure accountability of the crimes committed in the course of the conflict, as illustrated by the memorandum between the Government and Office of the Court’s Prosecutor.  Libyan authorities continued to demonstrate their commitment to ensure effective and genuine investigations and fair trials, he said, adding that there had been recent progress towards setting up mechanisms to address allegations of other crimes during the armed conflict.  He took positive note of the Libyan Government’s efforts to improve conditions and treatment of detainees, as well as its commitment to secure the handover of detainees from the custody of armed brigades to effective State control, among others.  He encouraged the international community to continue providing the necessary support to the Libyan Government towards ending impunity for the most serious crimes committed during the conflict and advancing its development and security agenda.


PHILIPPA KING ( Australia) said Libya had made substantial progress, but serious security challenges remained, which made the work of all accountability actors more difficult.  She acknowledged the manner in which Libya had invoked its rights by challenging the Court’s jurisdiction regarding the cases against Saif al-Islam Qadhafi and Abdullah al-Senussi.  She also welcomed the close consultations between Libya and the Prosecutor’s Office on those matters, which reflected the principle of complementarity.  Libya’s adoption of a transitional justice law and the establishment of the Fact-Finding and Reconciliation Commission were welcome steps in re-establishing the rule of law.  However, she voiced concern at the lack of progress in addressing the situation of conflict-related detainees, urging Libya to ensure that detainees were transferred to effective State control, and that those responsible for mistreatment — or other crimes, such as enforced disappearances — were held to account.


PAUL MCKELL ( United Kingdom) was concerned by the difficulty in Libya’s internal political situation.  Such challenges were to be expected after four decades of misrule, but security sector and justice reform were more crucial than ever.  He said his country was committed to working with Libya and providing the support it required.  He welcomed both Libya’s efforts to bring to justice those guilty of war crimes committed since February 2011, and the signing of the Memorandum of Understanding, stressing its swift implementation.  He also called for implementing the law criminalizing torture and enforced disappearances.  Libya must work with the United Nations to confirm the screening and processing of detainees, releasing those where evidence was lacking and processing those for whom trial was required.  In addition, he supported investigations regarding gender crimes, efforts that played an important part in challenging impunity.  Expressing support for Libya’s right to hold trials for crimes committed in its jurisdiction, he encouraged Libya’s cooperation in the Saif al-Islam Qadhafi and Abdullah al-Senussi cases.


MARÍA CRISTINA PERCEVAL ( Argentina) said the process of bringing those accused of the worst crimes in Libya was a “work in progress”, which had seen positive development in recent times.  She emphasized Argentina’s long-standing stance that the case of Saif al-Islam Qadhafi fell within the purview of the International Criminal Court.  Accordingly, Libya was under the obligation to hand over Saif al-Islam Gaddafi to that body.  She also urged the Court to pursue the cases of individuals residing outside the country, as well as cases related to torture and detention by armed groups.  Such efforts should be within the timelines established by the recent Libyan laws in keeping with the principles of due process.  Commending the Prosecutor’s Office in helping the Government address them, she said it was only through accountability through justice that peace and security could be advanced.  The Council could not just take note of situations and cases; it must express firm commitments to follow-up mechanisms.  Exemptions for States not party to the Rome Statute should not be entertained, she said, adding that the Court’s jurisdiction was universal.  Further, fighting impunity should be supported financially by all members of the international community, not just parties to the Rome Statute.


CHANTAL UWIZERA ( Rwanda) commended the Libyan Government’s efforts to rebuild State institutions amid such great challenges it was facing.  She urged the international community to maintain support in those efforts.  The Libyan Government had the authority to prosecute individuals accused of committing crimes, she stressed, calling for full implementation of the recently promulgated law.  She also urged the Libyan Government to ensure equality before the law.  In order for reconciliation, justice had to be rendered by the Libyans themselves.  Those accused currently residing outside should also be brought to justice.  The International Criminal Court should be the court of last resort, she said, underscoring the importance of strengthening national capacities.


JOON OH ( Republic of Korea) said that he expected Libya to continue implementing resolution 1970 (2011) and enhancing its cooperation with the Court.  Welcoming the signing of the Memorandum of Understanding, he expressed hope that it would help strengthen joint efforts aimed at fighting impunity.  There was also hope that the decisions regarding the Abdullah al-Senussi and Saif al-Islam Qadhafi cases could make a positive contribution of the interpretation of the principle of complementarity.  He stressed the importance of capacity-building in Libya and the need for international support towards that end.  There were many tasks ahead, but with cooperation by Libya, the Court and the Council, Libya would achieve sustainable peace and democracy based on the rule of law.


MASOOD KHAN (Pakistan), urging the international community to strengthen the capacity of Libyan institutions, called on all armed groups in Libya to lay down their arms and engage in dialogue to address their grievances.  Welcoming the Memorandum of Understanding, he said Libya was cooperating with the Court, in line with resolution 1970 (2011), and was committed to ending impunity and providing justice to victims.  The Pre-Trial’s Chamber’s decision vis-à-vis the Abdullah al-Senussi case was heartening, he said, noting that the security situation had not affected Libya’s ability to conduct those proceedings.  He requested the Court to provide more information on its investigations of those cases outside Libya.  He also urged NATO to cooperate with the Court in its investigations into civilian casualties.  He hoped Libya’s new transitional justice law would be used to ensure due process for all detainees, and, through the strengthening of those institutions, he urged a greater reliance on its national judicial systems to address crimes committed in that country.


ROSEMARY DICARLO ( United States) said the process of building a democratic nation was a long-term endeavour in which a more fair and effective system of justice would have to be built.  She welcomed Libya’s continuing cooperation with the ongoing proceedings of the International Criminal Court, including the recent memorandum.  The Court’s decision on the Al-Senussi case underlined the principle of complementarity in a country emerging from conflict, she said, welcoming recent Libyan efforts to build capacity to deliver justice.  Those in detention centres must not be held without due process, she added.


Much of the responsibility to prosecute those accused of the worst crimes would ultimately fall on the domestic authorities, she said, pointing out that the Court could not prosecute every single case.  Pledging her Government’s support for Libya in building national capacities, she urged the international community to work in a targeted and coordinated way to support the country as it undertook ways of addressing its challenges, including ending impunity.


OLIVIER MAES ( Luxembourg) said the struggle for rule of law and ending impunity were fundamental, and he welcomed the recent memorandum between the Libyan Government and the Prosecutor’s Office in pursuing cases against those accused of the worst crimes.  Expressing understanding of Libyan authorities’ desire to prosecute the accused domestically, he expected the Government to respect the final verdict on the case of Saif al-Islam Qadhafi.  It was up to Libya to guarantee rule of law, he said, adding that the current insecurity there was an obstacle.  There could be no true justice or true freedom without security and stability.  The international community should work together to bolster security and development in Libya, he said, adding that crimes perpetrated during the current period must not be ignored.  He also welcomed Libya’s recent adoption of the law on transitional justice on rights of and compensation for victims, and called for its swift implementation.


LIU JIEYI ( China) supported Libya in its political transition, expressing hope that all parties would commit to resolving differences through dialogue and “properly” meet challenges in order to achieve national reconciliation.  Welcoming Libya’s efforts to achieve judicial justice, he said China’s position on judicial organs remained unchanged.


IBRAHIM O. A. DABBASHI ( Libya), emphasizing that fighting impunity was a cornerstone of national unity, underscored the “precarious” situation of Libyan institutions and the complex demands of the transitional phase.  Welcoming the support provided by the United Nations and other States, and the recently signed Memorandum of Understanding, he said Libya was even more optimistic having read about the Court’s cooperation with other countries vis-à-vis “security deficits”.  “The Court is a significant and necessary partner for Libya,” he said, especially in restoring justice and fighting impunity around the commission of grave crimes.


The Memorandum of Understanding had crystallized that partnership and provided burden-sharing for judicial investigations and trials, he continued.  The perpetrators of most serious crimes against Libya were being detained. Libyan authorities faced difficulties investigating people outside its territory due to non-cooperation of the States where suspects were residing.  High-level officials of the former system who had fled continued to engage in activities aimed at destabilizing Libya, including massacres.  The countries where they were residing had not done enough to “follow the money trail and freeze the funds”, and were, thus, in violation of Security Council resolutions.


For its part, Libya aimed to cooperate with the Court as much as possible, he said, underlining that the families of victims placed responsibility for murder on the shoulders of Abdullah al-Senussi and Saif al-Islam Qadhafi.  They wanted to see justice brought to them.  In that context, he stressed that no Government would accept that a trial could take place outside Libya.  That would destabilize the “social peace”, which was already precarious, and further, threaten the lives of the perpetrators of those crimes.  The Libyan judiciary had started trials against those perpetrators, and it was clear that the international criteria for justice would be respected.  He hoped the Court would soon recognize Libya’s responsibility in trying the perpetrators and bringing about accountability.


“ Libya is very attached to the rule of law,” he stated, despite the circumstance prevailing in the country.  Without justice, there would be no national reconciliation, which was required to achieve security, development and prosperity.  Libya had come a long way in reforming its judiciary through the separation of powers between the executive and legislative branches, and indictments for serious crimes, according to the transitional law.  He expressed hope that legislation outlining compensation for victims would soon be passed, and further, that Libya would soon restore security and the rule of law as soon as possible.


Finally, he said he fully understood the concerns of human rights organizations and of countries in regards to the “excesses” that had taken place in detention centres.  Libya would not neglect any human rights violations, despite that they were isolated events.  Such violations had declined, thanks to the recently passed law on torture and other crimes. It was important to punish perpetrators and his country’s institutions were working “energetically” to bring such persons to justice.  However, he also noted that the country faced security problems, including the murder of judges, army and security officers.  With that, he urged the Council to encourage States to send all suspected criminals back to Libya, and provide “other” support to help freeze funds, so that the security situation in Libya could be restored and judges protected.


Ms. BENSOUDA said the different judgements presented by the Court in the cases of Al-Senussi and Saif al-Islam Qadhafi were based on their individual characteristics.  In the Al-Senussi case, the volume of information submitted was sufficient to show that the Libyan courts were capable of prosecuting the case.  Al-Senussi was in detention and benefiting from due process.  That had not been the case with Saif al-Islam Qadhafi, she said, adding that the judges found lack of specifics to meet the test.  The Court has sought further information from Libya.  The cases highlighted the impartial nature of the proceedings.  On detentions, the Court took serious note of what happened during the mission and was in contact with the Libyan authorities.  On NATO conduct during its operations in Libya, the Office found no evidence of intentional directing of attacks against civilian populations and targets.  Her Office would always conduct its mandate impartially and devoid of extraneous considerations.  The establishment of international rule of law required that of all stakeholders and actors, she concluded.


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