Statement of the ICC Prosecutor to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011)

17 May 2021

Mr President, Your Excellencies,

1. It is a pleasure to once again engage with the Council, albeit virtually, due to the prevailing COVID-19 pandemic. This briefing is my last before this Council on the Libya situation before the end of my mandate on the 15th of June. I would have preferred to be with you in person but the pandemic has forced us all to adapt and to find new ways of continuing our work. In response to these challenging times, my Office has also had to adopt new strategies and to demonstrate resilience, allowing nothing to detract us from our full commitment to our mandate under the Rome Statute.

2. Mr President, let me congratulate the People's Republic of China on assuming the Presidency of the Security Council for the month of May. I wish you, Mr President, every success in steering the crucial work of this Council in the pursuit of international peace and security and the protection of human rights and accountability for atrocity crimes in that context.

3. I also seize the occasion to congratulate the new members of the Council who have assumed their important function as of January of this year.

Your Excellencies,

4. On 23 October 2020, we witnessed the signing of the historic ceasefire agreement by Libyan parties in Geneva under the auspices of the United Nations. On the occasion of my last briefing to this Council, I welcomed this development and urged all parties to continue their efforts to bring peace and stability for the benefit of people of Libya who have endured so much. The recent inauguration of a new interim Government of National Unity is another commendable milestone which I welcome.

5. Lasting peace and stability remain crucial pillars of development and protection of human rights in Libya. Much hope rests on the Government of National Unity to work in an efficient and inclusive manner to address the violence and political turmoil that has engulfed the country and to secure peace and stability in Libya. There can be no lasting peace without accountability and justice and in this regard, I reiterate my Office's firm commitment to work in collaboration with the Government of National Unity to ensure accountability for serious crimes alleged to have been committed in Libya falling under the jurisdiction of the International Criminal Court ("ICC" or the "Court").

6. Even in the midst of serious financial constraints, the Libya situation remains one of my Office's active investigations and the situation will continue to be a priority and receive the attention it requires to advance it further. My Office will continue to exert all possible efforts to make substantial progress on this situation. Here, I wish to emphasise the importance of ensuring that my Office receives adequate resources to continue to advance this crucial work. We will be making submissions in this regard as part of the Office's 2022 proposed budget.

Mr President, Your Excellencies,

7. During the reporting period, members of my Office have travelled to Libya, interviewed witnesses and received essential documents and materials from various sources, including individuals, NGOs, and representatives of victims organisations within and outside Libya. In particular, my Libya team has continued to constructively engage with relevant Libyan national authorities following the discovery of multiple mass graves in the city of Tarhuna.

8. This engagement has resulted in fruitful exchanges, in particular, with the Prosecutor General's Office, the Office of the Military Prosecutor, the Criminal Investigation Department, the Ministry of Defence and several forensic agencies, regarding the status of national investigations, complementarity and cooperation.

9. The team also visited crime scenes in Tarhuna, including a site where over 100 bodies had been recovered from graves that were discovered in June of this year. The team met with prosecutorial, investigative, and forensic agencies involved in the investigation of these crimes, as well as with external partners who are undertaking related technical and judicial activities.

10. Additionally, the team met survivors and family members of the young men who were injured or killed during the airstrike on the Al-Hadba Military College in Tripoli on 4 January 2020, as well as with displaced persons from Benghazi and numerous victims of the crimes committed in Tarhuna.

11. All these positive engagements have enhanced my Office's ongoing efforts to strengthen cooperation with relevant national authorities and partners on the ground, thus opening much needed opportunities for the preservation and the collection of evidence for future prosecutions.

12. My Office has been impressed with the commendable hard work of all actors in their efforts to preserve relevant evidence of the alleged crimes, working together with the Government of National Accord. As the Office continues and intensifies its investigative activities in Libya, it looks forward to build on the existing rapport and relations towards strengthening a fruitful and collaborative spirit of engagement with the Government of National Unity.

13. In this regard, I would be remiss if I do not express my gratitude for the excellent cooperation and support that my Office has and continues to receive from the United Nations Support Mission in Libya ("UNSMIL"). My Office welcomes the appointment of Mr Ján Kubiš as Special Envoy of the UN Secretary-General and Head of the UNSMIL and looks forward to the continued cooperative relationship we have enjoyed under the able stewardship of Ms Stephanie Williams, to whom we express our sincere gratitude. Effective justice cannot be achieved without joint efforts and good cooperation with the national authorities and key partners such as UNSMIL.

Mr President, Your Excellencies,

14. My Office remains active in its close monitoring of the situation in Libya. We continue to receive concerning information about ongoing crimes, ranging from disappearances and arbitrary detention to murder, torture and sexual and gender-based violence.

15. We have collected credible information and evidence on serious crimes allegedly committed in official and unofficial detention facilities in Libya. In particular, the Office received information on the Mitiga Prison controlled by the Special Deterrence Force and the Gernada and Al-Kuweifiya detention facilities controlled by the militia known as the Libyan Arab Armed Forces, previously called the Libya National Army or LNA, and its associated forces. These crimes, which include large-scale torture, sexual violence, inhumane treatment, and arbitrary detention have been reported for years but regrettably to date, the perpetrators have not been held accountable.

16. Further credible reports detail the summary conviction and sentencing of civilians to long prison sentences including handing of death penalty by Military Courts in eastern Libya following secret trials devoid of fair trial guarantees. The Office has received documents and other materials supporting these reports.

17. The scale of these alleged crimes is large. UNSMIL reports that more than 8,850 individuals are arbitrarily detained at 28 official prisons in Libya in Judicial Police custody with an estimated 60 to 70 percent in pre-trial detention. An additional 10,000 individuals are detained in other detention facilities run by militia and armed groups including about 480 women and 63 juveniles and children.

18. I urge all parties to the conflict in Libya to immediately put an end to the use of detention facilities to mistreat and commit crimes against civilians and persons hors de combat. International law and the Rome Statute prohibit the use of detention facilities in this manner. I reiterate the critical importance for international observers and investigators to be given full access to all detention facilities in Libya and to receive full cooperation in this regard.

19. I urge the Government of National Unity to take urgent steps to put an end to the crimes committed in detention centres and to fully investigate allegations of arbitrary detention, torture, confiscation of property, rape and other forms of sexual violence, including in prisons and detention facilities.

20. My Office has also been following reports of the targeting of civilians who dare to voice opposition to the actions of militias in the east and west of Libya. The violent silencing of public critics as a method to terrorise the civilian population reached another low point with the despicable murder of human rights lawyer, Ms Hanaan Al-Barassi in Benghazi in November of last year.

21. The Office condemns these crimes in the strongest possible terms and calls upon the civil and military authorities in Libya to duly investigate and prosecute the persons responsible for these crimes. The Office reiterates its call to the Libyan authorities to fully investigate the disappearance of Ms Siham Sergewa, an elected member of the House of Representatives, who has been missing since her abduction in Benghazi on 17 July 2019.

22. In addition, the Office has received concerning information about the activities of mercenaries and foreign fighters in Libya. This information is consistent with the findings of UNSMIL Panel of Experts reports. The Office fully supports the call for these armed groups and individuals to leave Libya without delay. I must emphasise that crimes committed by mercenaries and foreign fighters on Libyan territory may fall under the jurisdiction of the Court, no matter the nationality of the persons involved.

23. I encourage this Council and all Member States of the United Nations to once again convey a clear and firm message to leaders and commanders, be they military or civilian, and all parties and armed groups involved in the Libya conflict that the rules of international humanitarian law must be respected and that those who defy such rules will be held individually responsible.

24. Regarding the ongoing victimisation of migrants in Libya, the Office has concretely enhanced cooperation, coordination and the exchange of information and expertise with national authorities and EUROPOL under the Office's Strategic Goal 6 in order to advance our respective work and investigations. I call on partners to intensify their efforts in this regard with the aim of strengthening our collective efforts in addressing impunity for serious crimes against migrants in Libya.

25. The recent reports about another shipwreck in the last week of April 2021 leading to the death of over 100 migrants as well as reports about the ongoing abuse and exploitation of migrants, underline the urgent need for national authorities, partners and agencies to intensify their efforts to prevent further tragedies and crimes.

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Mr President, Your Excellencies,

26. Let me reiterate and emphasise that the failure to execute the ICC warrants remains a major stumbling block preventing my Office from seeking effective justice for the victims of atrocity crimes committed in Libya. Recently, according to credible reports, two ICC suspects subject to arrest warrants for crimes committed in Libya have died and will never face justice at the Court.

27. Justice for victims and affected communities in Libya cannot be effectively achieved without our collective efforts towards the timely arrest and surrender of those against whom warrants of arrest have been issued by the Court. There has been no tangible progress in securing the execution of any of these warrants. This is an obligation that falls mainly on States.

28. Over the years of my reporting to this Council, I have lamented the fact that individuals against whom warrants of arrest have been issued remain at large. One of these individuals was Mr Mahmoud Mustafa Busayf Al-Werfalli, who as a commander of the Al-Saiqa Brigade was alleged to have executed 43 civilians as specified in two arrest warrants. Credible reports indicate that he was killed in Benghazi on the 24th of March earlier this year.

29. In addition, Mr Al-Tuhamy Mohamed Khaled allegedly responsible for the perpetration of serious crimes including torture, has also reportedly died in Cairo, the Arab Republic of Egypt.

30. I regret that victims, and their families, of the crimes allegedly committed by Mr Al-Werfalli and Mr Al-Tuhamy have been denied justice and closure through the Court's fair, independent and impartial judicial proceedings. Much work and resources have gone into the preparation of these cases and now, uncertainty remains. All this could have been prevented had the suspects been duly arrested and transferred to the custody of the Court.

31. The unwillingness of those in power in eastern Libya to transfer Mr Al-Werfalli to the Court, or to genuinely investigate and prosecute him, has contributed to a climate of impunity. The same lack of cooperation is evident with regard to the surrender of Mr Al-Tuhamy by the Egyptian authorities.

32. I call on the Libyan and Egyptian authorities to promptly investigate these reported deaths and to provide the relevant information to the Court.

33. While the deaths of these suspects, if confirmed, will not stop the ongoing investigation of the situation in Libya, they constitute a tragic example of suspected perpetrators escaping accountability for the most serious crimes of concern to the international community.

34. I must recall that the warrant of arrest against Mr Saif Al-Islam Gaddafi remains unexecuted. I reiterate that Mr Gaddafi remains a wilful fugitive from justice. I stress that Libya remains under the legal obligation to arrest and surrender him to the Court. The Office therefore calls upon the Government of National Unity to take all possible action to secure his arrest and surrender. I also repeat the calls addressed by my Office directly to Mr Gaddafi to immediately surrender himself to the competent Libyan authorities for his transfer to the Court to face trial. Defendants benefit from all due process guarantees at the ICC.

35. Your Excellencies, justice delayed is justice denied. ICC warrants of arrest must be executed in a timely fashion.

Mr President, Your Excellencies,

36. The Office equally notes the decrease in the number of reported crimes under the Court's jurisdiction since the ceasefire and inauguration of the new Government. It is nevertheless a matter of concern that many serious crimes, in particular those targeting civilians have gone unpunished.

37. My Office has continued to secure cooperation from several States and international and regional organisations as well as to extend and enhance its existing network of cooperation to achieve meaningful progress in its ongoing investigations.

38. In particular, relations with EUROPOL on matters of mutual interest have been enhanced. Fruitful engagements with the Panel of Experts on Libya as well as the Independent Fact-Finding Mission on Libya have also greatly facilitated sharing of knowledge and expertise.

39. Let me conclude, Mr President, Your Excellencies, with a final reflection. During my mandate I have seen commendable support for the work of my Office, and great cooperation from many States and other stakeholders. I would like to take this opportunity to express my sincere appreciation for that support.

40. At the same time, the Office has, unfortunately, faced challenges when the machination of politics has attempted to interfere with the course of justice. Ultimately, wisdom and common values have merged to counter and reverse some of these trends, and for that my Office is equally grateful.

41. The Court's important work must be allowed to be done unimpeded. We must continue, all of us, to defend this institution that was built for the sake of present and future generations, and work together towards greater accountability for atrocity crimes and the advancement of the international rule of law and the peaceful settlement of disputes so central to the founding principles of the United Nations.

42. My Office will continue to deliver its mandate independently and impartially in Libya, as it does in all situations where we have jurisdiction. We look to the support of this august body as we undertake this necessary work.

43. I thank you for your attention. | OTP

Twenty-first report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1970(2011)