More than a year after soldiers outside Government control launched a deadly offensive to seize its capital, Libya is still suffering high levels of violence and attacks against civilians for which perpetrators must be held to account, said the International Criminal Court’s senior prosecutor in a 5 May videoconference meeting* of the Security Council.
“Serious violence related to the armed conflict in Libya, particularly in and around Tripoli, has regrettably not abated,” said Fatou Bensouda, the Court’s Chief Prosecutor, in her Office’s nineteenth report following referral of the situation to the Court.
Noting that her team is forging ahead with its work despite the exceptional circumstances brought about by the COVID-19 pandemic, she announced that — while three arrest warrants in the Libya case remain unexecuted — the situation continues to be a priority and her Office is now working on applications for several new warrants.
Pointing out that some 13 months have elapsed since the Libyan National Army — led by General Khalifa Haftar — launched its offensive to capture Tripoli, she said concerns remain about clashes, attacks on civilians and civilian infrastructure, arbitrary detention and the mistreatment of migrants and refugees. Emphasizing that those crimes — including attacks against hospitals and schools — are prohibited under the Court’s Rome Statute, she added that persons detained without due process are at high risk of torture, sexual violence or murder. “Such crimes are all too common,” she said, noting that her Office recently adopted a useful new cooperation strategy to exchange information with relevant States and organizations.
Turning to the crime of enforced disappearance — which spreads terror within a society and inflicts suffering on the families of victims — she spotlighted the case of Siham Sergewa, a member of the Libyan House of Representatives who was kidnapped from her home in Benghazi in July 2019 and is still missing. She also drew the Council’s attention to a spike in hate speech, warning that it can deepen social divisions and foments conditions in which genocide can occur. Political and other leaders have a special responsibility to refrain from such speech and lead by example, she said.
Outlining the Court’s judicial work, she said its Appeals Chamber rejected an appeal by Saif al-Islam Qadhafi — the son of Libya’s former President, the late Muammar Qadhafi — finding that his case is admissible to the Court and his arrest warrant remains enforceable. Because the domestic proceedings against Mr. Qadhafi are not final, Libyan law stipulates that he must be re-tried should he surrender himself. However, Mr. Qadhafi has so far made no effort to surrender himself and is a wilful fugitive. Underscoring Libya’s obligation to arrest and surrender him, she described the Appeals Chamber’s decision as an important evolution of international law, determining that amnesty measures which prevent prosecution or punishment for crimes against humanity are inconsistent with international law and run counter to the purposes of the Rome Statute.
Turning to outstanding warrants for the arrest of two other prominent figures, Al-Tuhamy Khaled and Mahmoud al-Werfalli, she said that Egypt — where the former is believed to reside — has thus far not arrested and surrendered him. Meanwhile, Mr. al-Werfalli is believed to be under the command of General Haftar, who has neither facilitated an arrest nor ensured genuine investigation and prosecution. Welcoming the cooperation of many countries, including the Libyan Government of National Accord, she emphasized that military leaders may be held accountable for crimes committed by troops under their control. “Commanders have a responsibility both to prevent or repress the commission of crimes by their forces, and to submit any such crimes for investigation and prosecution,” she concluded.
As Council members delivered statements, many welcomed the International Criminal Court’s work in Libya — including its advancing investigations of crimes committed against migrants and refugees — and hailed the Government of National Accord’s cooperation with the Prosecutor’s Office. However, some also voiced concern that no warrants have yet been executed in Libya, and that three high-profile fugitives remain at large. Several delegates emphasized that peace will never be achieved in Libya without justice, nor can justice prosper in the absence of peace.
France’s delegate was among those speakers who expressed their countries’ support for the Court, stressing that it must be able to act independently and impartially. There can be no doubt that anyone who incites or commits serious crimes in Libya today is liable prosecution, she said, while simultaneously voicing concern about obstacles blocking the Prosecutor’s Office from executing three outstanding arrest warrants. “Only a political solution and the restoration of the rule of law can put an end to the Libyan crisis and avoid a further degradation on the ground,” she said, calling on the parties to cease hostilities and urgently engage in a United Nations-led dialogue.
The representative of Saint Vincent and the Grenadines said the Court has a fundamental role to play in the collective quest for peace and justice. Condemning recent violence and demanding the safety and protection of civilians in Libya, she reiterated the importance of consolidating the Organization’s three-point plan and the crucial work of the United Nations Support Mission in Libya (UNSMIL). Calling on all States to respect their treaty obligations, cooperate with the Court and adhere to the principles and purposes of the United Nations Charter, she encouraged countries that have not yet done so to ratify the Rome Statute.
Belgium’s representative also voiced unwavering support to the Court while condemning recent threats made against its officials and their families. The continued escalation of violence in Libya with total impunity — including attacks against civilians and civilian infrastructure — demonstrate why the Court is needed more than ever. Calling for such crimes to be investigated and prosecuted, as they may constitute war crimes, he emphasized that the Court cannot be effective without cooperation from all stakeholders. All competent authorities should facilitate the immediate arrest of the three outstanding fugitives in the Libya case and surrender them to the Court, he said.
The representative of Estonia, Council President for May, spoke in his national capacity, affirming his country’s support for the Court. Spotlighting Libya’s security challenges — as well as those created by COVID-19 — he condemned indiscriminate shelling and airstrikes as well as attacks against civilians and instances of arbitrary detention, enforced disappearance, torture and extrajudicial killings. “International criminal justice continues to rely on collective effort,” he stressed, urging all States — including those that are not party to the Rome Statute — to fully cooperate with the Court.
The representative of Niger echoed that sentiment, urging full cooperation with the Court. He called on the Libyan authorities and the Prosecutor’s Office to continue investigations aimed at establishing responsibility and providing justice to victims, including for crimes that targeted migrants. Reiterating calls for compliance with the arms embargo, he said the weapons pouring into Libya “not only contribute to prolonging the Libyan conflict, but also fuel other sources of insecurity, as is the case in the Sahel and the Lake Chad Basin”. The Council, the African Union and other stakeholders must join efforts to bring about an early end to those clashes, he stressed.
The representative of Tunisia expressed regret that prospects for justice and lasting peace remain elusive nearly a decade after the Council first referred the Libyan situation to the Court. He welcomed progress by the Prosecutor’s Office in bringing additional submissions concerning migrant-related crimes, while noting the apparent lack of enforcement of existing arrest warrants. Spotlighting the Rome Statute’s complementarity mandate, he urged the international community to support the empowerment of Libya’s judicial system. The most pressing priority remains ensuring the commitment of the Libyan parties to a permanent ceasefire, paving the way for a political process and the fight against COVID-19, he said.
To that point, the representative of the Dominican Republic stressed: “Health systems around the world are collapsing due to the COVID-19 pandemic, but hospitals are still being hit by indiscriminate attacks in Libya.” Reiterating the need to protect civilians, civilian infrastructure, historical sites and religious buildings, he underscored the Court’s important deterrent effect, “especially in this moment when multilateralism is facing grave challenges”. In that regard, he welcomed progress made by the Prosecutor’s Office — including its advancing investigations of migrant-related crimes — and called on Member States to cooperate with those efforts.
The representative of the United Kingdom said it is particularly appalling that health-care facilities continue to be targeted in Libya at a time when countries are facing an unprecedented shared threat. Pledging her country’s support to the Court, she called on all relevant States — including those which are not party to the Rome Statute — to cooperate in the arrest and surrender of warranted individuals. Escalating violence, continued indiscriminate abductions, arbitrary detentions and extrajudicial killings are unacceptable, she added, expressing concern that Siham Sergewa remains missing. An inclusive political solution — as set out by the Berlin Conference — offers the best hope for the stability and future prosperity that the Libyan people need and deserve, she said.
China’s representative welcomed all the efforts to ensure a lasting ceasefire, especially during the month of Ramadan and amid the COVID-19 pandemic. Voicing support for a Libya-owned, Libya-led political settlement process, he urged the United Nations and regional organizations to continue their mediation efforts and called on all Member States to strictly implement the arms embargo on Libya. The international community must continue to help the country achieve peace, stability and development while fully respecting its independence, unity, sovereignty and territorial integrity, he said.
The representative of Viet Nam struck a similar tone, noting that continued violence and attacks on civilians will only worsen the Libyan people’s suffering — especially during the pandemic. Reiterating the importance of dialogue over warfare, he said the parties should cease hostilities in the spirit of Ramadan, uphold their international legal commitments and allow unhindered humanitarian access to those in need. Peace talks should resume under the three political, security and economic tracks, with support activities conducted through remote means if necessary.
The representative of South Africa said the Prosecutor Office’s greatest obstacle remains the continued non-execution of arrest warrants. Cooperation between the Council and States parties to the Rome Statute is vital to advance those cases, he said, welcoming the Libyan authorities’ continued cooperation. Echoing calls for progress on the peace process amid efforts to combat COVID-19, he raised concerns about ongoing fighting alongside reports of abductions and crimes against migrants. Among other things, he welcomed efforts by the Prosecutor’s Office to exchange information with stakeholders in a manner that supports national authorities’ investigations and prosecutions of migrant-related crimes.
Indonesia’s delegate joined other speakers in calling for an immediate end to hostilities and military operations in Libya and urging the parties to resume “5+5” Joint Military Commission talks. Welcoming stepped up efforts by the United Nations to distribute extra emergency supplies, he also called for an expansion of humanitarian corridors and expressed concern about the rising numbers of civilian casualties. Libya is obligated to ensure accountability for crimes committed in its territory, he said, calling on the international community to help empower national judicial authorities and warning the Court to avoid disarming the competent Libyan officials from invoking their jurisdiction.
Several other speakers agreed that the Court should take a back seat to national prosecutions or voiced concern over elements of its scope and mandate. The representative of the United States described it as shameful that some of the most notorious perpetrators of crimes in Libya continue to enjoy impunity. The United States rejects any foreign military intervention in Libya and supports a rapid return to a political process. He added that while his country is a strong supporter of accountability and justice for victims, it has long stood against assertions of the Court’s jurisdiction over nationals of States that are not parties to the Rome Statute absent a referral by the Council or the consent of such States.
The representative of the Russian Federation emphasized that there is no viable military solution to the 9-year-old conflict in Libya, which has its roots in the gross distortion of a 2011 Council resolution. The way forward is a return to impartial diplomatic work and negotiations, he said, adding: “It is up to Libyans to determine the future of their country.” Calling on the parties to cease hostilities and enable joint efforts to combat COVID-19, he turned to the Prosecutor’s work, noting that several parties to the Libyan armed conflict appear to go unnoticed and “apparently excused”. Coalition bombings and destruction remain invisible to the Court, and even fighters from Islamic State in Iraq and the Levant (ISIL/Da’esh) somehow remain outside its scope of engagement, he said.
Libya’s delegate underlined his country’s continued cooperation with the Court, while also emphasizing that the search for justice falls under the auspices of national sovereignty. The Libyan judiciary is committed to ensuring a fair and impartial trial for all those who are wanted, including fugitives and outlaws, and monitors all crimes committed on its territory. Libya has issued warrants for the arrest of several individuals, first and foremost General Haftar and leaders under his command. He stressed that serious crimes are still being committed in Libya, including the bombardment of several hospitals in Tripoli — one of which was treating COVID-19 patients — and the disruption of water, gas and electricity supplies amid the pandemic.
“What is [the Court] waiting for to hold accountable all those responsible for these violations […] committed by the so-called ‘National Army’?”, he asked. Drawing attention to other serious crimes — such as support provided to criminals by third party States, the use of mercenaries and the provision of financing and arms — he urged the Court to cooperate with the Council’s sanctions committee and panel of experts to ensure consistency among all evidence and findings. Emphasizing that the aggressor continues his attacks despite a false announcement of a humanitarian truce, he said there can be no doubt whether to consider him an obstructionist and spoiler to Libya’s peace process.
The representative of Germany said that, nine years since the Council referred the situation in Libya to the Court, “we must not let impunity reign”. Urging Member States to assist in executing outstanding arrest warrants, he stressed: “It is this Council’s responsibility to ensure that its referrals are followed up and implemented.” He also voiced concern about continued high levels of violence and the systemic use of sexual violence — including against refugees and migrants — and recalled that the sanctions listing criteria introduced by the Council on sexual- and gender-based violence clearly recognized the devastating effects of those heinous crimes on Libya’s peace and reconciliation efforts. As forces associated with General Haftar are responsible for 80 per cent of attacks on civilians and most attacks on health-care facilities, he stressed that such a blatant disregard for human life demands a response from the Court.
* Based on information received from the Security Council Affairs Division.