Failure to Hand Over Indictees in Libya Will Undermine Cause of Justice, International Criminal Court Chief Prosecutor Warns Security Council

9 May 2018
8250th Meeting (AM)

Failure to Hand Over Indictees in Libya Will Undermine Cause of Justice, International Criminal Court Chief Prosecutor Warns Security Council

‘The People Deserve Answers,’ She Says, as Permanent Representative Blames Security Situation for Delay in Prosecutions

Despite significant progress in the International Criminal Court’s investigation of crimes committed within Libya in 2011 — including its first visit to the country in five years, in March 2018 — the cause of criminal justice would be undermined unless accused perpetrators were handed over, the Chief Prosecutor told the Security Council today.

Presenting her fifteenth report, Chief Prosecutor Fatou Bensouda called upon Libyan authorities to surrender three suspects for whom the Court had issued warrants of arrest:  Mahmoud Mustafa Busayf al‑Werfalli, Saif al‑Islam Qadhafi and Al‑Tuhamy Mohamed Khaled.  Cooperation among the Security Council, States parties as well as non‑States parties to the Court’s founding Rome Statute was also vital to advancing those cases and sending a message to would‑be perpetrators.

“The Libyan people deserve answers,” she asserted, emphasizing that suspects could not be sheltered.  Seeking justice for victims would remain a priority.  She also voiced extreme concern over reports of slave auctions, describing them as an abhorrent assault on the “oneness of humanity”, and over the reported abuse of migrants in detention centres run by national authorities or by militias, while outlining her intention to apply for arrest warrants against other suspects in the near future.

In the ensuing dialogue, several delegates expressed support for the Court’s work and execution of its mandate in Libya under resolution 1970 (2011), calling for the perpetrators of human rights violations to be brought to justice.  Others, including Kazakhstan’s representative, said political instability and a breakdown in the rule of law had led to widespread rights abuses.

Unless a solution was found, said Equatorial Guinea’s delegate, efforts to counter terrorist actions in West and Central African countries would be in vain, since the causes of the evils affecting that subregion’s countries had arisen from the support provided to the terrorist group Boko Haram by Libyan criminal gangs.

Tackling those issues required cooperation among all States, whether or not they were signatories to the Rome Statute, said Bolivia’s delegate, pointing out that some permanent Security Council members were not States parties to the treaty, nor had they assisted the Court’s investigations.  Peru’s delegate added that concerted efforts would provide an opportunity to strengthen the rule of law, both domestically and internationally.

Yet, Kuwait’s representative stressed that the Court must also take national jurisdiction into account in respect of cases before Libyan tribunals.  The Court’s work should be done in the context of “desired integration” with the national judiciary, as a supplement to national jurisdiction, in accordance with the Rome Statute.

On that point, the representative of the Russian Federation said the Court had long ago recused itself from investigating cases involving the air strikes carried out by the North Atlantic Treaty Organization (NATO).  Its work had been selective, with warrants limited to members of Muammar al‑Qadhafi’s inner circle, but not rebels or terrorists, he added.

Libya’s delegate explained that the delay in prosecuting the accused did not mean that national justice did not wish to punish those responsible for crimes.  The fragile security situation was to blame, he said, advocating the enhancement of Libyan justice to ensure accountability and prevent crimes, especially those arising from the proliferation of arms used by militias.  “We recognize the rights of migrants and the scope of their suffering.”

He went on to express hope that the next report by the Office of the Prosecutor would mention procedural efforts to fight criminals in their countries of origin and destination, which could reduce instability in Libya, a transit country.  The fight against impunity should be based on the concept of territory and the primacy of law, he said, noting that Libyan authorities wished to observe the Court’s jurisdiction.

Also speaking today were representatives of the United Kingdom, United States, Ethiopia, France, Sweden, Côte d’Ivoire, Netherlands, China and Poland.

The meeting began at 10:03 a.m. and ended at 11:40 a.m.


FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, presenting her fifteenth report on the situation in Libya, said her Office had made significant progress, but ongoing conflict throughout the country had created fertile ground for the commission of atrocities.  She condemned the 2 May double suicide bombing of the Libyan National Election Commission headquarters in Tripoli, which killed at least 15 people.

She said her Office continued to do its part within the four corners of its mandate.  “We are steadily progressing in our investigations” into crimes committed in 2011 as well as more recent ones.  She announced that in March 2018, members of her Libya team had travelled to the country for the first mission on Libyan territory since June 2012, a “significant” advance in the Office’s investigative activities.

Citing three outstanding public arrest warrants, she said the one issued against Mahmoud Mustafa Busayf al‑Werfalli for his alleged role in committing or ordering seven executions that had resulted in the murder of 33 people was an example of the crucial importance of the timely arrest and surrender of individuals subject to arrest warrants.  Mr. Al‑Werfalli, since the warrant’s issuance in 2017, had continued to act as a commander in the Al‑Saiqa Brigade, and regrettably, had allegedly committed further murders which could be prosecuted as war crimes under the Rome Statute, she said.

Suspects indicted for such grave crimes could not be sheltered, she said, emphasizing:  “The Libyan people deserve answers.”  Victims of atrocity crimes deserved to see justice done, she added, noting that despite her appeals, Mr. Al‑Werfalli had not been surrendered to the Court.  It was further troubling that on 24 and 25 January 2018, video footage had emerged on social media that appeared to depict him murdering 10 people near the Bi’at al‑Radwan Mosque in Benghazi.

She went on to stress that her Office would not hesitate to file new applications for arrest warrants in relation to the situation in Libya, including crimes in Benghazi.  Noting that national authorities claimed they were investigating Mr. Al‑Werfalli, she said that in light of additional murders allegedly committed by him, “these claims simply do not appear credible”.  His arrest and surrender was more important now than ever, notably to send a clear message to would‑be perpetrators that such reprehensible crimes would not be tolerated, she said, pressing the Council to assist her Office with strategies for the arrest and surrender of fugitives in Libya.

Turning to other cases, she said there were conflicting accounts about whether Saif al‑Islam Qadhafi continued to be detained in Libya.  Regardless of his custodial status, the warrants against him were outstanding and Libya was obliged to surrender him to the Court, she added, calling upon Libyan authorities to take all necessary steps to do so.  Al‑Tuhamy Mohamed Khaled, former head of the Libyan internal security service, was also at large, despite a warrant issued in April 2013 and made public in April 2017.

“Without arrests, both the cause of international criminal justice in Libya and the very raison d’être of Security Council resolution 1970 (2011) will be undermined,” she said, underlining the importance of cooperation as a cornerstone of the Rome Statute legal framework.  As such, the Office of the Prosecutor continued to exchange information with States and relevant organizations, in accordance with its strategic plan, which sought to close the impunity gap for serious crimes.

Regarding the focus on the trafficking of migrants, she said such an approach had allowed for more collaborative efforts to gather and analyse information, and to identify which judicial actors were best positioned to investigate or prosecute such alleged crimes.  The Office of the Prosecutor had received significant support from Italy, the Netherlands, Tunisia and the United Kingdom, as well as the International Criminal Police Organization (INTERPOL), she noted.  More broadly, she expressed concern over the large numbers of migrants in Libyan detention centres — whether run by national authorities or militias — many of whom had reportedly been abused and even killed.

She went on to voice express extreme concern over reports of slave auctions.  That such abhorrent acts could still occur was an insult to past victims of bondage and an assault on the “oneness of humanity”.  Reiterating her appeal for the Council to facilitate financial support to her Office, she said her team’s responsibility under resolution 1970 (2011) included leveraging the Council’s unique authority to ensure the timely execution of Court decisions and the execution of arrest warrants.  “We have a collective responsibility to cultivate a culture of accountability for Rome Statute crimes in Libya,” she stressed.


DIDAR TEMENOV (Kazakhstan) expressed deep concern over the sharp increase in civilian casualties, totalling 248 in the period from January to February 2018.  A number of those casualties had resulted from improvised explosive devices, gunfire, remnants of war and shelling.  Political instability, a fragile security situation and a breakdown in the rule of law had resulted in widespread abuse of human rights and violations of international humanitarian law, he noted.  “The current security and political situation in Libya continued to create a breeding ground for growing impunity of terrorist groups and armed militias.”  Condemning the attack on the Libyan High National Elections Commission in Tripoli on 2 May —claimed by Islamic State in Iraq and the Levant (ISIL/Da’esh) — he expressed his country’s deep alarm over reports of abductions and executions of military personnel, civil society members and political rivals.  Thousands of migrants and refugees also continued to suffer heinous abuse.  An effective Government would be crucial in bolstering Libya’s capability to restore the rule of law, end impunity and protect human rights, he said, emphasizing that rebuilding national institutions, including security and defence forces, required international support.

SUSAN JANE DICKSON (United Kingdom), expressing full support for the Court’s work, said political divisions in Libya only benefited certain armed groups intent on criminality.  Emphasizing the urgent need to break the political deadlock and ensure that those committing human rights abuses did not evade justice, she said the United Kingdom strongly supported Human Rights Council resolutions aimed at increasing accountability and supporting the International Criminal Court’s parallel efforts.  “The current cycle of violence and impunity must be stopped,” she said, stressing that it was crucial for Member States and relevant international organizations to help the Libyan authorities build the rule of law.

Mr. KUZMIN (Russian Federation), wishing everyone a happy Victory [in Europe] Day, said the situation in Libya remained complex.  The road to national reconciliation, unity and State institutions was through a national Libyan dialogue, he said, expressing his country’s support for efforts in that regard under the aegis of the United Nations.  The recent visit by members of the Office of the Prosecutor was the most noteworthy event in the Chief Prosecutor’s latest report, but alas, there had been no substantive change.  He said the Court’s work had been selective, with arrest warrants being limited to members of Muammar al‑Qadhafi’s circle, but not rebels or terrorists.  Moreover, the Court had long ago recused itself from investigating cases involving North Atlantic Treaty Organization (NATO) air strikes, he noted.  On the catastrophic situation of refugees and migrants, he said that issue must be seen from a holistic point of view, including by identifying those who purchased migrants.

GUSTAVO MEZA-CUADRA (Peru), noting that 150,000 people were internally displaced within Libya amid reports of atrocity crimes, pressed the Council to refer to the Court situations where access to justice and accountability must be guaranteed, pointing out that the Court’s work called for full cooperation by all States.  While recognizing the authority of the Office of Libya’s Prosecutor‑General, he said national authorities were obliged to carry out arrest warrants.  The Court’s jurisdiction complemented the responsibility of States to protect their populations, and cooperation was an opportunity to strengthen justice and the rule of law, both domestically and internationally.  Confidence in justice was particularly important for Libya, where ISIL/Da’esh and Boko Haram could be involved in migrant trafficking, he stressed.  The action plan for inclusive political processes must be implemented quickly, under United Nations leadership, while the High State Council and the House of Representatives should discuss how to end the violence.

MARK A. SIMONOFF (United States) said those responsible for crimes committed during Libya’s 2011 revolution must be held to account.  Having called for Saif al‑Islam Qadhafi to stand trial in The Hague, the United States had also noted the International Criminal Court’s arrest warrants for Al‑Tuhamy Mohamed Khaled and Major Mahmoud Mustafa Busayf al‑Werfalli.  The United States had grave concerns about the human rights situation in Libya today, and about the appalling reports of human trafficking and an alleged slave market, he said, emphasizing that the Government of National Accord must step up efforts to hold those responsible to account.  To counter abuses in the longer term, Libya must overcome its political impasse and establish a stable, unified Government that could end impunity, defeat terrorism, safeguard the rule of law, and provide security and prosperity for all Libyans.  In that regard, he expressed support for the efforts of the Secretary‑General’s Special Representative.

Mr. ALFASSANI (Kuwait), expressing concern over the recent spate of violence, kidnappings and executions, emphasized that the primary responsibility to enhance justice fell on the Libyan authorities, stressing also that the International Criminal Court must take into account national jurisdiction over the cases under consideration by Libyan courts.  That should be done in the context of “desired integration” between the national judiciary and the International Criminal Court, the latter being supplementary to national jurisdiction, in accordance with the Rome Statute.  He underlined the need for continued international support for the Libyan Government as it developed a strategy to address heinous crimes, enforced justice and implemented Security Council resolutions.  Noting that the magnitude of security challenges continued to undermine the role of Court experts conducting investigations, he welcomed the recent visit by the team from the Office of the Prosecutor following a five‑year hiatus.  Cooperation between Libyan authorities and the United Nations Support Mission in Libya (UNSMIL) would further the effectiveness of the investigations, he added.

ANATOLIO NDONG MBA (Equatorial Guinea) strongly condemned the 2 May terrorist attack on the national electoral commission in Tripoli, which killed some 14 people.  The unstable security situation in Libya had fostered armed conflict among various factions, adding to a climate of impunity, widespread arbitrary detentions, migrant trafficking and other human rights violations — all of which raised grave concerns over the threat to international peace and security.  He urged the international community to cooperate with the International Criminal Court and to redouble efforts to fight that “slew” of crimes.  He also urged the various factions to end the current situation, voicing deep concern over the prevailing conditions.  Unless a solution was found, efforts to counter terrorist actions in West and Central African countries would be in vain, since the causes of the evils affecting those countries stemmed from the support provided to Boko Haram by Libyan criminal gangs, he warned, urging the international community to support the Court in ending impunity within Libya.

MAHLET HAILU GUADEY (Ethiopia) said the Libyan people’s agony must stop and the sense of continuing impunity come to an end.  All those who committed human rights violations and attacks must be brought to justice.  The international community must help Libya build its State institutions, she said, adding that only a lasting political solution would end violations of human rights.  Ethiopia encouraged all Libyans to keep working in a spirit of compromise and to engage in the political process set out in the United Nations Action Plan.  For its part, the international community — including the Security Council — should put out a strong and united message to calling on all Libyan parties to halt the violence and to engage in political dialogue, she said.

ANNE GUEGUEN (France) pressed the Council to support the International Criminal Court, noting that, alongside UNSMIL, it was essential to countering Libya’s myriad challenges.  All stakeholders must implement the Special Representative’s action plan, and commit to both the national conference and the elections.  Indeed, a credible electoral process was essential to a successful political transition, she said, describing the creation of a national security architecture under civil authority as a priority.  Pointing out that the Court’s inquiries required full cooperation from all stakeholders, she said cooperation among all States, whether parties to the Rome Statute or not, must be pursued.  Expressing disappointment that the arrest warrant against Mr. Al‑Werfalli had not been carried out, she called upon the Libyan national army to transfer him to the Court, welcoming the fact that the Office of the Prosecutor‑General had delivered on a significant number of arrest warrants.  France would continue to counter migrant trafficking in Libya, she pledged.

IRINA SCHOULGIN NYONI (Sweden) noted that all the arrest warrants issued in relation to Libya remained outstanding, expressing regret that none of the suspects had been handed over to the Court since the Council’s last briefing six months ago.  INTERPOL had now issued a “red notice” regarding Mahmoud al‑Werfalli, she said, reiterating that Libya should cooperate with the Office of the Prosecutor and immediately arrest and surrender the suspects.  “Ensuring accountability for perpetrators would underline that impunity for crimes in Libya will not be tolerated,” she added.  Cooperation among different actors, including the Office of the Prosecutor, the Libyan authorities and the United Nations remained crucial to ensuring justice, she emphasized.  She welcomed efforts by the Office of the Prosecutor to integrate a gender perspective into its investigations, stressing that while a gender perspective had not been included in the most recent report, it was essential to do so in future.  Reports of grave human rights violations, including against migrants, and slave auctions must be fully investigated, she said.  “The [Prosecutor’s] Office needs our full support — both political and financial,” she added.

CARLA CECILIA CARDONA MOSCOSO (Bolivia) said that in order to prevent impunity, all States — whether or not they were signatories to the Rome Statute — must facilitate the Court’s work.  She expressed concern about the irregularities surrounding the al‑Werfalli case, saying reports of extrajudicial executions, killings and armed clashes were discouraging, as was the number of people killed in crossfire.  Noting the attack, allegedly by ISIL/Da’esh, on the offices of the High National Election Commission in Tripoli on 2 May, she said the Office of the Prosecutor should investigate such criminal acts.  She went on to point out that the International Criminal Court was a global undertaking, yet some States — including permanent Council members — were not signatories to the Rome Statute, nor did they contribute to the Court’s investigations.

ALCIDE DJEDJE (Côte d’Ivoire) said the problems in carrying out arrest warrants demonstrated the need for sustained international support for the Court’s efforts to fight impunity.  As a State party to the Rome Statute, Côte d’Ivoire fully supported the Court’s work to promote justice and fight impunity, both in Libya and around the world, she said, noting that, in Libya, armed groups acted with impunity in hostage‑taking, torture, extrajudicial executions and slave auctions, all of which constituted crimes against humanity.  He expressed support for broadening the scope of the Court’s competence to include crimes against migrants, as well as adding persons and entities to the sanctions list associated with resolution 1970 (2011).  He also voiced support for the Special Representative’s action plan to advance national reconciliation and lay the foundation for peace through an inclusive, democratic process.  Welcoming the broad public consultations carried out by UNSMIL across the country, he encouraged all actors to commit to a credible political process that would lead to free and transparent elections.  Côte d’Ivoire welcomed the Libyan authorities’ facilitation of the Court’s first mission to the country in years, he said.

LISE GREGOIRE VAN HAAREN (Netherlands), commending the cooperation between the Office of the Prosecutor and that of Libya’s Prosecutor‑General, said there must be greater cooperation from all States as well as the Security Council, especially with regard to the surrender of suspects.  The fact that Mr. Al‑Werfalli had allegedly committed more murders since the Council last considered the situation in Libya demonstrated that a lack of accountability encouraged more crimes.  “It is a show of disregard for this Council and the international community as a whole that he continues to be at large,” she said.  Noting that 2018 marked the twentieth anniversary of the Rome Statute, she said there were many situations outside the International Criminal Court’s jurisdiction, including Syria, yet the Council was all too often paralysed and unable to take action.

ZHANG DIANBIN (China) voiced support for the United Nations for advancing the relevant action plan and increasing its use of good offices.  The Government of China supported national jurisdiction, he said, noting that Libyans must own the political settlement process by engaging in dialogue to resolve their differences.  The settlement must accommodate the interests of all parties, he emphasized.  Pressing the international community to respect Libya’s unity, sovereignty and territorial integrity, and to support Libya in various other aspects, he said China’s position on the Court remained unchanged.

JOANNA WRONECKA (Poland), Council President for May, spoke in her national capacity, saying that her country hoped that the investigations by the Office of the Prosecutor would help to deter further crimes.  Encouraging all Libyan parties to support the United Nations‑supported political process, she said Poland was very concerned about the ordeal of detainees and migrants, including the estimated 4,000 being held in detention centres, where they suffered sexual harassment, torture, labour exploitation, and some were even killed.  All such atrocities must end and human rights must be respected, she said, underlining the role of the International Criminal Court, the Security Council and the entire international community, in addition to Libyan actors, to hold those who committed international crimes to account.

ELMAHDI S. ELMAJERBI (Libya) said that for the Government of National Accord, the administration of justice and fighting impunity were the focus of national reconciliation, which called for support from the United Nations and friendly brotherly countries.  The Court was a necessary partner for justice and its Memorandum of Understanding with Libya’s Prosecutor‑General outlined that partnership, in place since 2013.  The Government was aware of the delay in prosecuting those accused, he said.  “This does not mean national justice does not wish to punish those responsible for crimes.”  Rather, the delays were due to the security situation, which had prevented the Court from conducting investigations on Libyan territory.

He went on to call for international assistance so that Libyan authorities could emerge from the security crisis and ensure the success of the political dialogue.  He also called for the strengthening and consolidation of national institutions in order to ensure peace and security, control the factors leading to potential violations, and confiscate the weapons used in the commission of crimes.  He advocated enhancing Libyan justice to ensure accountability and prevent crimes, especially those arising from the proliferation of arms used by militias.

Libya understood the concerns raised over the reported arbitrary detention and abuse of migrants, he continued, stressing:  “We recognize the rights of migrants and the scope of their suffering.”  Citing, in that context, the proliferation of militias and weapons throughout the country, he said UNSMIL’s report emphasized a focus on crimes, but not trafficking in persons and other atrocity crimes, which must be fought in accordance with international humanitarian law; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; and the United Nations Convention against Transnational Organized Crime.

He expressed hope that the next report by the Office of the Prosecutor would mention procedural efforts to fight criminals in their countries of origin and destination, explaining that such efforts could reduce instability in Libya, which was a transit country.  He called on all concerned to base the fight against impunity on the concept of territory and the primacy of law, noting that Libyan authorities wished to observe the Court’s jurisdiction.  The United States was helping Libya strengthen its criminal justice system so it could better perform its duties, he said, stressing that his country would welcome more such support to ensure that the rule of law was paramount in respect of Libya’s sovereignty and local legislation.

For information media. Not an official record.