Statement of ICC Prosecutor to the UNSC on the Situation in Libya

New York

8 May 2017

Mr President, Your Excellencies:

1. I welcome this opportunity to engage with the Council on the occasion of my Office's thirteenth report on the situation in Libya pursuant to Resolution 1970.

2.& At the outset, allow me to observe with profound regret that the overall security situation in Libya has deteriorated significantly since my last report to this Council in November of last year.

3. Reports indicate that the country is at risk of returning to widespread conflict.  Such an outcome would not bode well for the rule of law in Libya, and will surely aggravate a climate of impunity, which could in turn lead to widespread human rights abuses and violations of international humanitarian law.  As is often the case, it is ordinary citizens – innocent men, women and children – who bear the brunt of the suffering caused by this state of insecurity.

4. It is in this context that the International Criminal Court now, more than ever, has an important role to play in Libya. I am convinced that timely and concrete action can make a tangible difference to Libyan lives. With this in mind, and cognisant of my responsibility to pursue the important mandate conferred upon my Office by this Council, I remain committed to prioritising the Libya situation in 2017.

5. Since I last reported to this Council, steady progress has been made in my Office's investigations.

6. This progress has been achieved notwithstanding the prevailing security situation in Libya, which continues to prevent my investigators from carrying out their work on the ground.

7. Undeterred and driven by a firm commitment to fulfil our mandate vis-à-vis Libya, my Office continues to employ innovative methods to collect evidence from outside of the country through secure channels.  Such efforts are largely made possible by the cooperation of States and the ongoing assistance of the Libyan Prosecutor-General's office. My Office will continue to explore options for its investigators to resume activities on Libyan territory in a safe and secure environment.

8. As the Council is aware, an existing warrant of arrest issued under seal by the Court against Mr Al-Tuhamy Mohamed Khaled ("Mr Al-Tuhamy") has recently been made public.  Mr Al-Tuhamy is the former head of the Libyan Internal Security Agency under Muammar Gaddafi.  My Office has alleged the suspect is responsible for crimes against humanity of imprisonment, persecution, torture, and other inhumane acts, and the war crimes of torture, cruel treatment and outrages upon personal dignity. These crimes were allegedly committed by Mr Al-Tuhamy as part of Mr Muammar Gaddafi's response to the events of 2011.

9. In issuing the warrant, the Pre-Trial Chamber of the Court found reasonable grounds to believe that the Internal Security Agency, led by Mr Al-Tuhamy, along with other Libyan military, intelligence and security agencies, arrested and detained persons perceived to be opponents of Mr Gaddafi and his rule. These persons were allegedly subjected to various forms of mistreatment, including severe beatings, electrocution, acts of sexual violence and rape, solitary confinement, deprivation of food and water, inhumane conditions of detention, mock executions, and threats of killing and rape, in various locations throughout Libya.

10. At this juncture, unsealing of the warrant of arrest against Mr Al-Tuhamy will enhance the chances of its execution, and will equally send an important message to would-be perpetrators that the Court remains seized of the situation in Libya and continues to be active in carrying out its judicial work.   

11. Furthermore, my Office has recently become aware of reports that Mr Al-Tuhamy is currently residing in Libya. The victims of Mr Al- Tuhamy's alleged crimes deserve justice and yearn to see justice done. State cooperation with the International Criminal Court, and with this Council, is crucial to ensuring justice for these victims can be realized.

12. I thus urge Libya, first and foremost, as well as all States, whether States Parties or non-States Parties, to take immediate action to verify Mr Al-Tuhamy's whereabouts and to take all possible steps to facilitate his arrest and surrender to the Court.  

13. I equally hope to count on the tangible assistance and cooperation of this august body for the expeditious execution of this warrant of arrest and for the timely arrest and surrender of Mr Al-Tuhamy to the Court.

14. What message does it send to the victims and the perpetrators, indeed, what is the deterrent impact, if ICC warrants of arrest are issued but are not enforced and the capture of suspects remains elusive? 

15. We all have our respective roles to play, and we must deliver on our joint commitment to end impunity for Rome Statute crimes in Libya.

Mr President, Your Excellencies,

16. In my last report, I briefed this Council on my Office's application to the Court's Pre-Trial Chamber for an order directing the Registry to transmit the request for the arrest and surrender of Mr Saif Al-Islam Gaddafi to Mr Al-'Ajami al-'Atiri, Commander of the Zintan militia which had custody of the suspect at that time.

17. My Office has since received reliable information that Mr Gaddafi is no longer under the control of Mr al-'Atiri but rather under the control of the Zintan Revolutionaries' Military Council.

18. I renew my call on the Government of National Accord to take the necessary steps to transfer Mr Gaddafi into its custody so that Libya can surrender him to the Court in accordance with its international legal obligations, the judicial rulings of the International Criminal Court, and repeated calls by members of this Council.

19. With respect to the case of Abdullah Al-Senussi, as this Council will recall, in July 2015, the Tripoli Court of Assize issued its judgment in the trial of Mr Al-Senussi, Mr Gaddafi and 35 other former members allied with Mr Muammar Gaddafi in relation to crimes allegedly committed during the events of 2011. Mr Gaddafi was tried in absentia. Both Mr Gaddafi and Mr Al-Senussi were convicted. The case of Mr Al-Senussi is currently on appeal before the Libyan Supreme Court.

20. On 21 February 2017, the United Nations Support Mission in Libya, in cooperation with the Office of the United Nations High Commissioner for Human Rights, issued its full report on the conduct of this trial. The report acknowledges the challenges inherent in prosecuting a complex case against former officials in the context of an ongoing armed conflict and political polarisation. However, it concludes that the trial fell short of international fair trial standards.

21. It is important to recall that the Appeals Chamber of the International Criminal Court has held that due process violations in a domestic trial must be "so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the accused" in order for the case to be deemed admissible before it.

22. My Office has thoroughly reviewed the report and is considering it along with the full Libyan trial judgment within the framework of articles 19(10) and 17(2)(c) of the Rome Statute to determine whether new facts have arisen which negate the basis on which the Pre-Trial Chamber found Mr Al-Senussi's case inadmissible before the Court

Mr President, Your Excellencies,

23. It is undoubtedly disconcerting to this Council that the ongoing political instability and the volatile security situation in Libya have reportedly led to the widespread commission of serious crimes. Reports of continued killings of civilians, abductions, detentions, torture and sexual violence in Libya should be of great concern to all of us.

24. My Office continues to receive and examine information from a variety of sources, including non-governmental organisations and private individuals, with respect to crimes alleged to have occurred throughout Libya since 2011. I welcome the submission of reliable information by concerned groups or individuals regarding crimes that may fall within the Court's jurisdiction.

25. In particular, my Office continues to collect and analyse information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya. My Office is collaborating and sharing information with a network of national and international agencies on this issue.

26. I am deeply alarmed by reports that thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane conditions. Crimes, including killings, rapes and torture, are alleged to be commonplace.

27. I am similarly dismayed by credible accounts that Libya has become a marketplace for the trafficking of human beings. This Council has itself expressed concern that the situation in Libya is exacerbated by the smuggling of migrants and human trafficking into, through and from Libya. These activities could further provide fertile ground for organised crime and terrorist networks in Libya.

28. The situation is both dire and unacceptable, demanding a concerted response by the relevant actors to address these serious trends of criminality.

29. I take this opportunity before the Council to declare that my Office is carefully examining the feasibility of opening an investigation into migrant-related crimes in Libya should the Court's jurisdictional requirements be met.  We must act to curb these worrying trends.

30. Additionally, my Office has been closely following events in Ganfouda, Benghazi where civilians have reportedly been heavily impacted by protracted fighting between the Libyan National Army and the Benghazi Revolutionaries Shura Council. Reports indicate that on or around 18 March 2017, forces of the Libyan National Army took over Ganfouda.

31. Following this takeover, disturbing video footage has emerged which appears to depict Libyan National Army forces committing serious crimes, including summary executions of detained persons.

32. I draw the attention of all parties to the conflict to the provisions of the Rome Statute relating to the responsibility of commanders and other superiors to prevent or repress the commission of crimes by their forces, and to submit any such crimes for investigation and prosecution.

33. My Office remains seized of the Libyan situation and continues to monitor events as they unfold in Benghazi and across the country.

Mr President, Your Excellencies,

34. I would be remiss if I did not acknowledge the excellent cooperation my Office receives from a network of states, organisation and entities. First and foremost, I must again express my utmost gratitude to the Libyan Prosecutor-General's office, which has continued to provide invaluable assistance during the reporting period.

35. I am also grateful to the individuals and groups from within the Libyan community who work tirelessly to promote and support the work of the International Criminal Court, in the interests of the victims and in the hopes of building the future of Libya on the pillars of justice and accountability.

36. I equally note the extension of the mandate of UNSMIL and I look forward to our continued fruitful collaboration.  I benefit from this opportunity to publicly acknowledge and commend the tireless efforts of the outgoing SRSG Mr Martin Kobler and his team at UNSMIL, and thank them for their continued support.

37. I also express my deep appreciation for the vital support my Office receives from several other States and organisations, including but not limited to: the Netherlands, the United Kingdom, Tunisia, Italy, the European Union, and the European Union Naval Force.

38. Exceptionally, there are some States which have not responded promptly to requests for cooperation and I respectfully urge those States to do so.

Mr President,

39. With your indulgence, I would like to stress one final point, and that is the important issue of resource challenges my Office continues to face.

40. In this regard, I welcome the initiative of the Chair of the Security Council Committee established pursuant to Resolution 1970 concerning Libya to issue a note verbale in November 2016, bringing to the attention of all States the need to ensure adequate funding to support ICC investigations.

41. Without adequate resources, the crucial work of the Court is hampered and its ability to impact on the current climate of impunity in Libya is diminished.

42. I once again respectfully call on this Council to promote the work of the International Criminal Court in Libya by supporting efforts aimed at providing financial assistance by the United Nations.

Mr President, Your Excellencies,

43. The Libyan people continue to strive for solutions that will pave the way for sustainable peace, security and prosperity in Libya.  Justice and accountability are indispensable in this equation, without which the cycle of violence is at risk of continuing, further entrenching divisions within Libyan society and making national reconciliation ultimately more difficult to achieve. I am heartened by reports of some recent positive developments in the political dialogue.

44. To conclude, I wish to say to those victims and victim-groups who advocate for the International Criminal Court to play a more prominent role in Libya: I am listening.

45. To those of you who express to my Office your fears and disappointments, as well as your hopes and aspirations for the future of a Libya grounded on the pillars of justice where gross human rights violations are distant memories of the past, your calls for action do not fall on deaf ears.

46. The Libyan people have endured too much and have suffered for too long.  They are deserving of that deeper sense of safety and security that society provides when it is fully immersed in the protective embrace of the law.

47. And while I am under no illusions that the International Criminal Court is a panacea – it surely is not – I, along with my team, are committed to playing our part.

48. I thank you, Mr President, Your Excellencies, and all those who are following this session from inside and outside this room, for your attention. 

Thirteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1970 (2011)

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