Urgent Action Needed to End Hostilities in Libya, Ensure Return to Talks, International Criminal Court’s Chief Prosecutor Tells Security Council

SC/13804
8 May 2019
8523rd Meeting (PM)

Urgent Action Needed to End Hostilities in Libya, Ensure Return to Talks, International Criminal Court’s Chief Prosecutor Tells Security Council

Keep Situation at Top of Priority List, Urges Permanent Representative, as Russian Federation Says Conflict’s Roots Overlooked

With clashes continuing across Libya amid persisting impunity for war crimes, urgent action is needed to end the hostilities and ensure a return to negotiations on restoring peace and justice, the International Criminal Court’s Chief Prosecutor told the Security Council today.

“The status quo is not sustainable,” said Chief Prosecutor Fatou Bensouda, presenting the seventeenth report issued by her Office pursuant to resolution 1970 (2011).  The current lack of accountability undermines respect for the rule of law and impedes progress towards stability and security in Libya, she added.

“In a country devastated by war and conflict, with great human suffering, it is past time for the protective embrace of the law to feel real and tangible to Libyans,” she emphasized.  The Office of the Prosecutor aims to close the impunity gap.  “Acting within our mandates, we share a joint burden and great responsibility in this regard for the sake of all Libyans and Libya,” she added, stressing:  “We must not fail to deliver on that joint duty.”

Providing an update on cases against Said Al-Islam Qadhafi, Al-Tuhamy Mohamed Khaled and Mahmoud Mustafa Busayf Al-Werfalli, she said the individuals remain at large, pointing out that executing warrants requires the full cooperation of the Council and all parties.  Indeed, progress is hampered and confidence in the Court undermined when arrest warrants remain unexecuted year after year, she noted.  Meanwhile, the Prosecutor’s Office continues to monitor the situation, paying close attention to conflict in and around Tripoli, where more than 50,000 people have been displaced and more than 400 killed since April, she said, adding that it is also gathering evidence of crimes against migrants, include rape and enslavement.

“Impunity for atrocity crimes is hardly conducive to bringing peace and stability to this war-torn country,” she said.  “We are aware that, given the prevailing climate of impunity in Libya, there are people who see the International Criminal Court as their only hope to hold alleged perpetrators of atrocity crimes to account.”

With the floor open, many Council members condemned the recent spate of violence, expressing grave concerns about the deteriorating humanitarian situation and reiterating that all parties must return to negotiating a path towards peace.  The United Kingdom’s representative stressed that it is as important as ever that the Council monitor developments in Libya and return to a United Nations-led political process.

Many speakers commended the International Criminal Court’s efforts, with France’s representative saying its role today is just as important as it was in the past.  The Court must be able to carry out its prerogatives in an unfettered way, she said, emphasizing that any lasting peace requires justice for the victims.  Echoing concerns about crimes against migrants, she said “these challenges cannot be overcome without the support of the Court and this Council”.

The representative of the United States cautioned that in bringing perpetrators to justice, “we must also be careful in recognizing the proper tools”.  Underlining that the International Criminal Court has no jurisdiction over Member States that have not signed the Rome Statute, he said that does not, however, undermine the commitment of the United States to international law.

Expressing a different perspective, the Russian Federation’s representative said that despite the Chief Prosecutor’s briefings on the situation in Libya every six months for the past eight years, the Court has generated neither momentum nor results.  The conflict has deep roots, beginning with a number of States which attempted to “bomb democracy” into the country, he recalled.  The result was chaos, migration and rampant violence, which the International Criminal Court seems to have overlooked.

Libya’s representative, speaking on behalf of the country’s Foreign Minister, said the Government of National Accord is taking steps to protect its citizens and ensure justice is delivered.  However, the current security conditions must be considered in terms of arresting individuals, he cautioned, pointing out that some of them are not even on Libyan territory.  Nevertheless, the Government fully supports resolution 1970 (2011) and hopes the Council will place the situation in Libya at the top of its priority list in order to adopt a binding resolution to stop the hostilities and ensure that those who started the hostilities “go back where they came from”.

Also speaking today were representative of Kuwait, Dominican Republic, Germany, Peru, China, South Africa, Côte d’Ivoire, Belgium, Poland, Equatorial Guinea and Indonesia.

The meeting began at 3:05 p.m. and ended at 4:41 p.m.

Briefing

FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, presented the seventeenth report issued by her Office pursuant to resolution 1970 (2011).  Expressing regret that fighting continues across Libya, she said the Office of the Prosecutor continues to monitor the situation, paying close attention to conflict in and around Tripoli, where more than 50,000 people have been displaced and more than 400 killed since April.  All parties to the conflict must take all measures to protect civilians and civilian infrastructure, she said, warning that commanders failing to take all measures to prevent such crimes will be held responsible.  The Office of the Prosecutor stands ready to prosecute any party, she said, emphasizing that the suffering of Libya’s people must stop and the rules of international humanitarian law must be honoured.

Providing an update on the case of Said Al-Islam Qadhafi, she said he has lost his admissibility challenge and filed an appeal of the Chamber’s decision.  Pointing out that Libya remains under obligation to arrest and surrender Mr. Qadhafi to the International Criminal Court, alongside Al-Tuhamy Mohamed Khaled and Mahmoud Mustafa Busayf Al-Werfalli, she expressed regret that securing State cooperation in the arrest and surrender of suspects remains one of the Court’s greatest challenges.  Despite the Court’s arrest warrant against him for the war crime of murder in relation to 33 people, Mr. Al-Werfalli remains at liberty and has allegedly murdered another 10 people in five months after the warrant was issued, she said.  Mr. Al-Tuhamy, former head of Libya’s internal security agency, accused of crimes relating to torture, has been wanted since 2013, she added, noting that all three remain at large, with the failure to arrest them jeopardizing ongoing investigations.  In the long run, this lack of accountability undermines respect for the rule of law and impedes progress towards stability and security in Libya, she said, declaring:  “The status quo is not sustainable.”

Renewing a call for cooperation from the State and asking the Council to lend its support, she continued:  “Impunity for atrocity crimes is hardly conducive to bringing peace and stability to this war-torn country.”  The Office of the Prosecutor also continues to follow the case of tens of thousands of internally displaced persons, she said, adding that it has collected evidence of rape and enslavement committed against migrants.  Implicated in the smuggling and trafficking business are individuals, militias and State actors, including from Misrata, Al-Zawiyah, Tripoli and Bani Walid.  Assessing the feasibility of bringing such cases to the Court in cooperation with a number of States and organizations, she said the Prosecutor’s Office’s aims to close the impunity gap by helping national systems ensure accountability for crimes that may not fall within the Court’s jurisdiction.  Feedback from partners shows that the strategy is already proving effective, she added.

Expressing appreciation for the cooperation extended by States, organizations and Libyans themselves, she said “we are aware that, given the prevailing climate of impunity in Libya, there are people who see the International Criminal Court as their only hope to hold alleged perpetrators of atrocity crimes to account”.  While the Prosecutor’s Office takes its responsibilities seriously, progress is hampered and confidence in the Court undermined when arrest warrants remain unexecuted year after year, she said.  Pointing out that executing warrants requires the full cooperation of the Council and all parties, she stressed:  “In a country devastated by war and conflict, with great human suffering, it is past time for the protective embrace of the law to feel real and tangible to Libyans.”  She continued:  “Acting within our mandates, we share a joint burden and great responsibility in this regard for the sake of all Libyans and Libya,” stressing:  “We must not fail to deliver on that joint duty.”

Statements

SUSAN JANE DICKSON (United Kingdom) noted the troubling humanitarian and security situation in Libya, saying “increasing instability and violence benefit no one”.  Calling upon those involved in the conflict to respect their obligations under international law, she noted with approval the Chief Prosecutor’s determination to hold perpetrators of crime accountable.  All those who breach international humanitarian law must be brought to justice, investigated and prosecuted, as appropriate, she said, calling upon all concerned to cooperate with the International Criminal Court on outstanding arrest warrants.  The Court must continue its efforts to bring those who remain at large to justice.  She went on to note with deep concern the deteriorating conditions for migrants, who face serious human rights violations in Libya, describing the abuses that some migrants face as appalling.  The human rights of displaced persons must be respected, and it is as important as ever that the Council monitor developments in Libya and return to a United Nations-led political process, she said.

BADER ABDULLAH N. M. ALMUNAYEKH (Kuwait) welcomed the efforts of the Prosecutor’s Office to continue its work despite the great challenges it faces.  “We share Ms. Bensouda’s concern over the military clashes that have caused the displacement of thousands of people,” he added.  Expressing his delegation’s concern about the report’s references to violations against migrants, he emphasized that the Libyan authorities bear the main responsibility for ensuring justice.  However, the International Criminal Court must also respect Libya’s jurisdiction over cases before the national courts, he said, stressing that the International Criminal Court is a complementary mechanism.

JOSÉ SINGER WEISINGER (Dominican Republic) expressed concern that some 432 people have already lost their lives and 40,000 have been displaced in 2019 alone, and yet no one has been prosecuted.  Emphasizing the essential need for State authorities to recognize the complementary role of international mechanisms, he called upon the Libyan authorities to cooperate effectively in the arrest of individuals against whom warrants have been issued.  The Dominican Republic calls upon those countries that have not yet accepted the International Criminal Court’s jurisdiction to hand perpetrators over for prosecution.

JONATHAN R. COHEN (United States) reiterated calls for holding Mr. Qadhafi, Mr. Al-Tuhamy and Mr. al-Werfalli to account for alleged crimes against humanity and other crimes.  He also expressed deep concern over the instability in Tripoli, saying all parties should return to the political process.  The United States will work to end the human rights abuses and human trafficking that have plagued the region, he said, emphasizing that perpetrators of atrocity crimes must face justice.  However, “we must also be careful in recognizing the proper tools”, he cautioned.  Underlining that the International Criminal Court has no jurisdiction over Member States that have not signed the Rome Statute, he said that does not, however, undermine the commitment of the United States to international law.

CHRISTOPH HEUSGEN (Germany) emphasized that there is no military solution and that stakeholders must promptly return to the negotiating table.  Those responsible must execute the International Criminal Court’s arrest warrants without delay, he added.  Libya, for its part, must do everything to ensure accountability for serious crimes and seek the Court’s assistance as needed.  Amid the global proliferation of violations of international law, including atrocity crimes and sexual violence in conflict, impunity must end, he said, stressing:  “This cannot become a new normal.”  Recalling that Germany was the first to prosecute atrocity crimes, he defended the values for which the Nuremburg trials stand.

GUSTAVO MEZA-CUADRA (Peru), reaffirming the value of the Rome Statute, called upon the Libyan authorities to execute the International Criminal Court’s arrest warrants.  He went on to note that the current situation is exacerbated by terrorist activities committed by such groups as Islamic State in Iraq and the Levant (ISIL/Da’esh) and Boko Haram.  He condemned recent attacks and called upon the International Criminal Court to investigate.  Confidence in justice and judicial institutions is the key to preventing conflict and the Court must, therefore, remain the linchpin of the world order, he said.

YAO SHAOJUN (China), highly concerned about recent developments, said he anticipates that the parties will return to negotiations with a view to building peace and stability.  China stands ready to work with the international community towards a peaceful solution, he said, while emphasizing that his delegation’s perspective on the International Criminal Court remains unchanged.

XOLISA MABHONGO (South Africa) said his delegation remains concerned about ongoing fighting and the deteriorating humanitarian situation.  Condemning the loss of civilian lives in Tripoli, he called upon all parties to respect international humanitarian law.  Inclusive political dialogue is the way forward, he emphasized, urging the parties to return to negotiations.  He called for examination of the causes behind the rise of terrorism in order to break the vicious cycle of conflict on the continent.

CHECK IBRAHIM BAKAYOKO (Côte d’Ivoire) said that attacks against the High National Election Commission, the National Oil Company and the Ministry for Foreign Affairs are a tragic demonstration of the spread of terrorism within Libya.  Commending the International Criminal Court’s efforts to investigate crimes in the country, he noted the warrants it issued for the arrest of Said Al-Islam Qadhafi, Al-Tuhamy Mohamed Khaled and Mahmoud Mustafa Busayf Al-Werfalli.  He said peace and security are inextricably linked to human rights, emphasizing that the Libyan parties are obligated to respect human rights and civilian infrastructure.

MARC PECSTEEN DE BUYTSWERVE (Belgium) emphasized that all Member States, whether party to the Rome Statute or not, must cooperate with the Court.  This, of course, affects Libya first and foremost, which must cooperate by handing over Mr. Qadhafi and Mr. Al-Tuhamy for prosecution.  Regarding Mahmoud Mustafa Busayf Al-Werfalli, he said it is up to the General of the Libyan army to hand him over to the Court.  Deploring the resumption of fighting in and around Tripoli, he said it must be firmly stated that all those found guilty of grave violations of international humanitarian law will have to answer for their actions.  The fight against impunity is vital to lasting peace in Libya, he stressed.

MARIUSZ LEWICKI (Poland) called upon all parties to respect international humanitarian law and international human rights law, stressing:  “It is not a matter of choice, it is a legal obligation both of States and non-State actors.”  All those responsible for violations of international law must be held accountable, he said, adding that the Libyan people deserve to live in peace and safety.  The outcome of the Prosecutor’s work depends very much on the cooperation of Member States, he pointed out.  “Without cooperation, you will not move forward with your prosecutions,” he added.  He went on to express concern over the human rights violations committed against migrants in Libya, urging the parties to help strengthen the rule of law there.

ANNE GUEGUEN (France) said the International Criminal Court’s role today is just as important as it was in the past.  It must be able to carry out its prerogatives in an unfettered way.  Any lasting peace in Libya requires justice for the victims, she said, describing the civilian population as the primary victim.  Expressing concern that many terrorist and criminal groups are trying to gain ground, she said the continuation of investigations by the Office of the Prosecutor requires all cooperation, welcoming the support provided by the International Police Organization (INTERPOL) and the United Nations Support Mission in Libya (UNSMIL).  Turning to the report’s section on trafficking of human beings, she said the cases mentioned are extremely informative and concerning.  “These challenges cannot be overcome without the support of the Court and this Council,” she stressed.

GENNADY V. KUZMIN (Russian Federation) noted that for eight years, the Prosecutor has presented a report to the Council every six months, ensuring that the International Criminal Court is working on the situation in Libya, but the Court has generated neither momentum nor results.  Moreover, it seems the Court is immune to fair criticism, he added.  The Libyan conflict has deep roots, beginning with a number of States which attempted to “bomb democracy” into the country, he recalled.  Instead, that bombing caused chaos, migration and rampant violence, which the International Criminal Court seems to have overlooked.  After a verdict explaining the interests of justice, in the International Criminal Court’s telling, the investigation in Libya will hardly be able to produce credible results, he predicted.

AMPARO MELE COLIFA (Equatorial Guinea) said the international community is waiting to see the International Criminal Court apply the criteria for war and atrocity crimes without discrimination.  Dismayed at the current situation in Libya, she said a ceasefire and a return to the negotiating table must be priorities.  The Libyan people have been calling for this, and the Council must act accordingly, she said.  Concerned about reports of war crimes alongside violations of human rights and international humanitarian law, she said the International Criminal Court must take action using legally established procedures.  Encouraging Council members and the broader United Nations membership to help in ensuring civilians and humanitarian workers are protected, she warned that the conflict is also affecting the broader population and the wider region.

DIAN TRIANSYAH DJANI (Indonesia), Council President for May, spoke in his national capacity, calling for a cessation of hostilities and for all parties to return to the negotiating table so as to determine a peaceful future for Libya.  Concerned about the large number of grave violations of international law and serious crimes, he called upon the parties and armed groups to respect the law and protect civilians.  The violence must stop, he emphasized, urging assistance for those in need.  While peace cannot be sustainable without justice, justice cannot prosper in the absence of peace, he pointed out, calling for an end to hostilities and a continuation of the peace process.  He went on to stress that referring the situation in Libya to the International Criminal Court should not disarm the competent Libyan authorities from invoking their jurisdiction to investigate gross violations of human rights and bring perpetrators to justice.

ELMAHDI S. ELMAJERBI spoke on behalf of the Minister for Foreign Affairs of Libya, recalling that the Government of National Accord sent a letter to the Council in 2019, requesting an investigation into recent violence and serious crimes against civilians in Tripoli, with a view to holding perpetrators accountable.  He called upon the international community, including the International Criminal Court, to hold accountable those States and individuals helping Khalifa Haftar, saying they can be listed for sanctions.  There can be no military solution to the situation in Libya, he stressed.

Administering justice on Libyan territory is the country’s responsibility, he continued.  At the same time, Libya is cooperating with the International Criminal Court on various cases.  Emphasizing that delays in arresting suspects are linked with the ongoing violence, he pointed out that some of the individuals wanted by the Libyan authorities and the International Criminal Court live outside the country.  Moreover, States that are not signatories to the Rome Statute believe they do not have an obligation to cooperate, he said.  According to resolution 1970 (2011), the International Criminal Court has the right to work on cases with or without the cooperation of such countries, he clarified.  From a judicial point of view, the Libyan jurisdiction is capable of prosecuting those who have committed crimes on its territory since 2011, he reiterated.

Responding to elements of the Prosecutor’s report, he said the Government of National Accord has taken swift measures to protect migrants in danger, relocating them away from the fighting in cooperation with the International Organization for Migration (IOM).  Authorities are also monitoring the situation, including attacks against civilian infrastructure.  The Government of National Accord fully supports resolution 1970 (2011) and hopes the Council will place the situation in Libya at the top of its priority list in order to adopt a binding resolution to stop the hostilities and ensure that those who started the hostilities “go back where they came from”.

For information media. Not an official record.