Libya’s Delegate Points to ‘Damning Evidence’, including Perpetrators’ Names, as Council Members Disagree about Court’s Jurisdiction, Impartiality
Against the welcome backdrop of a newly signed ceasefire and fresh political talks in Libya, States must recommit to bringing justice to the victims of the country’s worst atrocity crimes, the International Criminal Court’s top prosecutor told the Security Council during a videoconference meeting today, describing the failure to arrest and surrender fugitives as a “major stumbling block” impeding her work.
Chief Prosecutor Fatou Bensouda recalled that, on 23 October, the warring Libyan parties signed a ceasefire agreement under the auspices of the United Nations in Geneva. Calling on them to assiduously implement it, she declared: “Victims of atrocity crimes in Libya must be reassured that, notwithstanding any ceasefire or future agreement, individuals alleged to be responsible for serious crimes […] will be promptly arrested and surrendered.” Libya remains a high priority for the Prosecutor’s Office, with its investigations having progressed significantly since her last briefing in May.
Outlining those developments, she said that — even amid the challenges posed by the COVID-19 pandemic — the Court deployed two crucial investigative missions to Libya to collect additional evidence to further strengthen its cases. On 22 June, she issued a statement following the discovery of multiple mass graves in the city of Tarhunah and the south of the nation’s capital, Tripoli. Over 100 bodies — many blindfolded and with their hands tied — have been recovered to date. Thanking the Government of National Accord and the United Nations Support Mission in Libya (UNSMIL) for their support, she said those joint efforts continue in line with the cooperation and complementarity principles under Part 9 of the Rome Statute.
Turning to her office’s efforts to actively monitor the current situation in Libya, she said it has learned that the recently concluded offensive on Tripoli — carried out by the eastern-based militia known as the Libyan National Army — is part of a pattern of violence marked by the indiscriminate air strikes and shelling of civilian areas, arbitrary abduction, detention and torture of civilians, extrajudicial killings, enforced disappearances and the pillaging of civilian property. Noting that it has been seen before in places such as Benghazi, Derna, Ajdabiya, Marzuq and Sirte, she also cited credible information showing the increased use of mines and improvised explosive devices against civilians.
In particular, she said, mines and explosive devices were reported placed in civilian garages, kitchens and bedrooms, and were detonated when people returned home after fleeing from fighting in the city. Emphasizing that those “deeply disturbing” reports would constitute crimes under the Rome Statute, she encouraged the Council and all United Nations Member States to convey a clear and firm message to commanders — be they military or civilian — and all parties and armed groups in Libya “that the rules of international humanitarian law must be respected and that those who defy such rules will be held individually responsible”.
Turning to other investigations, she said her office is following reports of the targeting of civilians who voiced opposition to militias in the east and west of the country. UNSMIL recently called for an investigation into the alleged use of excessive force by security forces in Zawiyah and Tripoli. She is also receiving and examining evidence about allegations of serious crimes in prisons and detention facilities throughout Libya, including the arbitrary detention and torture of civilians. She urged all parties to end such practices, while calling for international observers and investigators to be given full access to detention facilities across Libya.
Noting that her office continues to monitor the situation of internally displaced persons, as well as crimes committed against migrants, who continue to be exposed to trafficking and torture, she voiced deep concern that — despite the Council’s imposition of sanctions against Ahmad Oumar al-Dabbashi for his involvement in crimes against migrants — he reportedly continues to commit them. She welcomed recent positive developments in that area — including the European Union’s imposition of sanctions against Mousa Adyab for human trafficking, as well as the rape and killing of refugees — and the sentencing by an Italian court of three individuals for crimes committed against migrants.
She warned that the failure by some States and parties to arrest and surrender fugitive individuals continues to constitute a “major stumbling block preventing my office from seeking effective justice for the victims”. Among those warranted individuals who remain at large are Mahmoud Mustafa Busayf al-Werfalli, a former commander alleged to have executed 43 civilians, and General Khalifa Haftar, the leader of the Libyan National Army. Arrest warrants against Saif al‑Islam Gaddafi and Al-Tuhamy Mohamed Khaled also remain unexecuted, she said, noting that the latter is alleged to be in Egypt.
Welcoming the strong cooperation of many States and stakeholders, she nevertheless declared: “We find ourselves in an age where powerful forces increasingly aim to undermine the cause of international criminal justice as a continuation of politics by other means.” What is required is greater support for the Court and the international rule of law, not less. “Any act that may undermine the global movement towards greater accountability for atrocity crimes and a ruled-based international order must be avoided,” she warned, urging the Council to stand firmly in advancing the cause of justice.
As delegations delivered virtual remarks, many speakers welcomed the signing of the ceasefire agreement on 23 October and the first meeting of the Libyan Political Dialogue Forum on 9 November. Several underlined the critical need to ensure justice for the most atrocious crimes in Libya, welcoming the Libyan Government of National Accord’s cooperation with the Court to that end. While many speakers called for all States to execute arrest warrants issued by the Court, others expressed deep reservations, voicing concern about the institution’s jurisdiction, impartiality and overall usefulness — both in Libya and elsewhere.
The representative of Belgium was among those speakers underlining his country’s firm support for the Court, which he stressed depends on the cooperation of all stakeholders. Praising the engagement of the Libyan authorities, he called upon all States — including Egypt — to demonstrate the same level of cooperation, while emphasizing that all parties have a responsibility to hand over fugitives wanted by the Prosecutor’s Office. Describing it as unacceptable that the Council has not shouldered its responsibility for the financial functioning of the Court at a time when it is most critical, he voiced regret about sanctions and threats made recently against the Court and its Chief Prosecutor. “Attacking the [Court] is attacking our values,” he said, calling upon the United States in particular to return to a cooperative relationship with the Court.
Estonia’s representative called on all States to uphold and defend the values enshrined in the Rome Statute and respect the Court’s integrity and impartiality. Condemning violations of international law in Libya — including the use of land mines and improvised explosive devices by the Libyan National Army and others — he called on authorities in charge of detention facilities to fully cooperate with international observers and investigators and voiced concern about crimes against migrants and refugees. He also noted with concern that there has so far been no implementation of the Court’s warrants in the case of Libya, which has meant that all three fugitives accused of serious crimes remain at large.
The representative of the Dominican Republic expressed hope that the recently signed ceasefire agreement will be implemented and usher in a lasting peace. Calling for the international community to step up the fight against impunity by fully supporting the Prosecutor’s Office, she said perpetrators of serious crimes must be brought to justice for the sake of victims and the prevention of further atrocities. Welcoming cooperation between the Court and the Government of National Accord, she nevertheless regretted that crimes continue against detainees, civilians and civilian infrastructure. She called on all stakeholders to intensify efforts to ensure the arrest of fugitives warranted by the Court, and on the Libyan parties to refrain from any further violations of international human rights and humanitarian law.
The representative of France stressed that the Prosecutor’s Office must be allowed to do its work without impediments. Emphasizing that ending impunity in Libya is crucial for the re-establishment of stability and democracy, he urged stakeholders and third-party States to fully cooperate with the Court — including in the arrest of fugitives and provision of evidence. Access must be granted to investigate situations of arbitrary detention and allegations of inhumane conditions, he said, adding that the trafficking of migrants and refugees must stop. Pledging that France will work to advance a political solution, he said all agreements must now be implemented and monitored effectively. He also joined other speakers in stressing the importance of complementarity between the Court and national judicial mechanisms.
The representative of Saint Vincent and the Grenadines, Council President for November, spoke in her national capacity, welcoming that today’s meeting emerges against the backdrop of positive developments in Libya. Expressing support for the Libyan Political Dialogue Forum currently under way, she said her delegation also looks forward to the convocation of the Libyan National Reconciliation Conference. In that vein, she underscored the importance of full cooperation and the principle of complementarity of the Rome Statute, which are fundamental for the Court to effectively discharge its mandate. She also echoed other speakers in denouncing the imposition of unilateral sanctions against the Court and its officials, and calling for their immediate removal.
Germany’s representative called upon both the Libyan parties and international actors to support the 23 October ceasefire, and for full compliance with the Council’s arms embargo. Recalling the extremely worrisome human rights conditions that impelled the situation’s initial referral to the Court, he encouraged the Prosecutor to continue her important work. Among other things, he affirmed the importance of Libyan efforts to collect evidence, noting that the ceasefire agreement provides an opportunity for further cooperation with the Court. Expressing horror at the carnage of explosive devices and the discovery of mass graves — and deep concern over allegations of inhumane conditions and torture — he called for accountability in all cases, while asking all stakeholders to assist in the arrest of fugitives.
The representative of Indonesia welcomed the progress made on national dialogue, calling upon all parties to respect the ceasefire agreement while declaring: “A military solution will never be an answer.” He also commended Tunisia for hosting the Libyan Political Dialogue Forum and Morocco and Egypt for hosting previous meetings. Underlining the need to fully respect international humanitarian law and protect civilians, he called for increased relief aid amid the COVID-19 pandemic, adding that progress on the security and political fronts must be complemented by progress on justice.
The representative of Niger said the fight against impunity must be an integral part of national reconciliation and lasting peace in Libya. Hailing the signing of the October ceasefire agreement, he voiced his hope that the accord will lead to the establishment of peace and stability and create the conditions needed for justice in Libya. However, he warned that peace also depends on compliance with the arms embargo. Libya does not need weapons or mercenaries, but instead further support and encouragement by neighbouring countries. He called for more attention on stopping the spread of COVID-19 and addressing the situation of migrants, who continue to be used as human shields.
South Africa’s representative voiced concern that arrest warrants for fugitives remain unexecuted, constituting the greatest obstacle faced by the Chief Prosecutor. Expressing support for the development of domestic institutions to investigate and prosecute crimes, he also commended the Prosecutor’s efforts to promote justice in domestic jurisdictions. Despite the myriad challenges — including the impacts of COVID-19 — it is heartening to note that the Prosecutor’s Office was able to cooperate with the Government of National Accord and advance ongoing investigations. Against that backdrop, he called on all parties and stakeholders to recommit to building a durable peace based on inclusive political dialogue.
The representative of the United Kingdom, recalling his country’s support for a Human Rights Council resolution establishing a fact-finding mission to investigate violations in Libya, reaffirmed its strong support for the Prosecutor’s work. He reiterated calls on all relevant States to cooperate on the arrest of outstanding fugitives, welcomed the cooperation of the Government of National Accord with the Prosecutor’s Office and noted with concern reports of abuses by the Libyan National Army. Citing the United Kingdom’s support for de-mining efforts, he condemned all violations of international law — including sexual violence and attacks on journalist and activists — and called for the investigation of all politically motivated disappearances and intimidation.
The representative of Viet Nam joined others in welcoming the new ceasefire agreement, as well as the launch of the Libyan Political Dialogue Forum. Urging the international community — including the Council — to help the parties implement the ceasefire, he underlined the need for continued constructive engagement in peace talks in line with resolution 2510 (2020) and the outcome of the Berlin Conference. He also emphasized that accountability for violations of international law and serious criminal acts should be achieved in accordance with international law, including respect for a State’s independence and sovereignty.
Tunisia’s representative echoed expressions of support for the Court and its Rome Statute, adding that — as a party to the Court and as Libya’s neighbour — his country fully supports efforts to bring about a peaceful, consensus-based political solution built upon the rejection of all forms of foreign interference. Condemning reports of murder, torture, arbitrary detention, attacks against civilians and crimes against migrants and refugees, he said Council resolutions and the Rome Statute should form the basis for efforts to achieve the “delicate balance” between ending impunity and bringing about peace. In that vein, he called for greater complementary and stressed that the Court’s work should not be conducted at the expense of Libya’s own judicial system.
The representative of China said the situation in Libya “has finally shown a ray of hope” with the signing of the ceasefire agreement and the opening of the Libyan Political Dialogue Forum on 9 November. The international community should now seize that window of opportunity to support the parties in advancing a Libyan‑led and Libyan‑owned political agreement, he said, emphasizing the need to strictly enforce the arms embargo and fully respect Libya’s sovereignty and territorial integrity. Noting that China’s position on the Court remains unchanged, he nevertheless rejected the imposition of unilateral sanctions against its Chief Prosecutor and called for an end to such bullying tactics.
The representative of the United States said accountability for the architects of Libya’s darkest days will bring justice to victims while delivering a powerful deterrent message. For that reason, his country supported the recent announcement of the European Union’s economic sanctions against Mahmoud al-Werfalli for his human rights abuses. The United States plans to propose the designation of Mohammed al-Kani and the Kaniyat militia on the 1970 Libya Sanctions Committee. Voicing opposition to any foreign military intervention, he also reiterated Washington, D.C.’s, principled objection to any 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. His delegation’s concerns regarding the Court and the situation in Afghanistan are well-known, he said, adding that its position on the Court in no way diminishes its commitment to accountability.
The representative of the Russian Federation expressed regret that, in the case of Libya, a “once-mighty State” has fallen victim to the interests of the North Atlantic Treaty Organization (NATO), with the entire region paying the price. Welcoming the Libyan Political Dialogue Forum, he said justice is not always the key to peace, as is the case when a biased international court is involved. Recalling that the Court chose not to investigate the death of civilians resulting from NATO air strikes, he said the same selective approach is seen in its work today. In that light, he questioned whether the Court’s work is indeed a stabilizing factor, or merely pushes back attempts to achieve peace in Libya. Justice can and should be achieved in national courts, he said, declaring: “The [International Criminal Court] is unnecessary.”
The representative of Libya said the Prosecutor’s briefing provided “damning evidence” of war crimes and crimes against humanity committed in Tripoli in April 2019, including the identity of the perpetrators. Underlining the principles of cooperation and complementarity with the Court, he said his Government has requested the deployment of a fact-finding mission to study crimes committed by General Haftar and his militias. Those included the deliberate targeting of schools, hospitals, energy and water facilities and migrant accommodation centres, as well as the use of landmines. He noted that, to date, around 200 human remains — including those of women, children and victims who were buried alive — have been discovered in the mass grave discovered at Tarhuna.
Pointing out that his Government bears the responsibility for uncovering crimes — which are not subject to statute of limitations — and identifying perpetrators, he thanked the Court for its support. Indeed, it is now clear that there is enough evidence to determine the perpetrators and to issue the necessary indictments. While Libya respects the Court’s procedures, the release of these results and the issuing of arrest warrants in the case of the aggression against Tripoli should be fast-tracked. “This is the least we can do for the families of the victims,” he stressed. Describing the recently launched Libyan Political Dialogue Forum as a critical step forward, he nevertheless warned that support for it should not come in the form of external dictates, interference or hegemony, and stressed that Libya must determine its own future.