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Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), Mrs Fatou Bensouda, Prosecutor of the International Criminal Court

​Eighth Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to the UNSCR 1970 (2011)
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Mr. President, Your Excellencies:

I welcome the opportunity to once again engage with the Council as I present my Office's eighth report on Libya. 

At the outset, Mr. President, I note with regret that as we are gathered here today, the security situation in Libya is worsening; political instability is growing, and unfortunately, an environment is developing that clearly cannot be conducive to closing the impunity gap in Libya. This, of course, is an issue of concern for me and my Office.

Since my last report to this Council on Libya in May of this year, the situation in the country has deteriorated. Despite the June 2014 elections, Libya is currently split with two governments vying for legitimacy.

A more worrisome aspect of the deteriorating situation is the on-going spate of assassinations in Benghazi, threats to media workers, human rights defenders and women in particular, as well as to prosecutors, judges and lawyers. There are, indeed, indications that crimes that fall within the jurisdiction of the International Criminal Court are being committed.

These troubling developments are clear signs that Libya is descending on the wrong path on its transition to what was hoped would be a peaceful country that respects and pays homage to the rule of law, justice and accountability. 

Over the years, this Council has expressed its grave concern at the worsening security situation as well as the political divisions which threaten to undermine the aspirations of the Libyan people. This Council has reiterated its support to the people of Libya and encouraged their continued and firm commitment to the establishment of a stable and prosperous State based on national reconciliation, justice, respect for human rights and the rule of law. Unfortunately, the Council's calls for political dialogue and refraining from violence and actions that challenge the stability of the State have been unheeded.

The international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.  For its part, the Libyan government is encouraged to be more specific in seeking such assistance.  I can only reiterate my previous calls to key partners of the Government of Libya to provide it with the necessary support as required to restore security and cultivate accountability for international crimes in the country. 

To be more responsive in providing such critical assistance, the possibility of forming aninternational contact group on justice issues through which material, legal and other support could be provided to Libya ought to be explored.

Such a forum should help to focus attention on specific problems facing Libyan authorities and assist supportive States to coordinate their own efforts with those of the International Criminal Court and of Libya.

For our part, Mr. President, let me assure you that my Office will do all it can to support this kind of coordination, as a form of cooperation that will render our own investigative and prosecutorial work more efficient and impactful, and which will reinforce the signal to the Libyan authorities that they are not alone in facing the present challenges.

Mr. President,

I cannot stress enough the deleterious impact that the unstable political and security situation in Libya has had and continues to have on my investigations. While my Office remains steadfast in its commitment to continue to pursue its mandate in Libya, the security situation has significantly hampered our ability to effectively investigate in the country.  I urge the Libyan authorities to expend all efforts, including coordinating closely with the United Nations and my Office, to ensure that the necessary conditions are in place as soon as possible so as to facilitate our investigations in Libya.

Moreover, contact with the Libyan Government has been largely confined to liaison with the Focal Point. Given the prevailing circumstances in Libya, it has been difficult for the Focal Point to facilitate effective contacts and secure the much needed assistance from the relevant national authorities to facilitate my Office's investigative efforts. As a result, progress with regard to the implementation of the Memorandum of Understanding between my Office and the Government of Libya has been slow.

Notwithstanding these challenges, we are attempting to forge ahead.  Recently, the Focal Point of the Government of Libya arranged a key meeting outside of the country between members of my investigation team and Libyan national investigators.  This constructive meeting provided an avenue for valuable exchange of information and ensured plans for follow-up meetings. The meeting laid the groundwork for coordination in the investigation and prosecution of individuals of concern to both my Office and the Libyan authorities. My investigation team, I must acknowledge, was impressed with the commitment and professionalism displayed by the Libyan national investigators who are undertaking their work under difficult circumstances. I look forward to building on this fruitful meeting and to working with the Libyan authorities to address the most urgent cases, and to take further steps toward closing the impunity gap in Libya. 

Mr. President,

An unfortunate reality, however, remains: the combined effect of instability and lack of resources has severely undermined my Office's investigative efforts in Libya. This means that we have been obliged to scale down resources for investigations in the country, in effect, limiting our ability to investigate, amongst others, new instances of mass crimes allegedly committed by the rebel forces.  My Office will have to prioritize its work and divert the limited resources at its disposal as it strives to complete its investigations to be trial ready in other cases where the judicial process has already been triggered.

As I have stated in another context, including at the recent open debate before this Council on the 23rd of October, the continuing disparity between resources and expectations, risks systematic underperformance that will not only harm the Court and its mandate, but also the credibility of this Council. This is particularly pertinent for situations that have been referred to the International Criminal Court by the Council. I encourage the Council to take this fact into consideration in light of the urgent need to revitalize the Libya investigation.

My Office is committed to ensuring that justice and accountability are respected and advanced in Libya.  To this end, I would be remiss if I did not benefit from audience before you today to stress that the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court is a matter of great concern to my Office and the Court.  In the past, this Council has expressed its displeasure at this failure to discharge a clear legal obligation. Libya must demonstrate its commitment to justice and accountability for mass crimes by fulfilling its obligations towards the Court and this Council. I take this opportunity before the Council to once again call on Libya to immediately surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.

As it concerns the trial of Abdullah Al-Senussi in Libya, my Office is closely monitoring developments in the case, following on recent contacts with the Libyan authorities and independent trial monitors. The on-going violence and alleged threats to judges, prosecutors and lawyers do not augur well for a fair trial that respects all the rights of an accused person. On the basis of the information collected and the status of any progress made, I will assess my options in due course, including whether to apply for a review of the judges' decision up-holding Libya's request that the case against Al-Senussi be tried in Libya.

Mr. President, 

Similarly, my Office remains very concerned about the number of individuals in detention, some of whom reportedly lack access to due process and may be subject to torture and death in custody. As the United Nations Secretary-General has noted: "the handover of all detainees to the effective control of the State is a prerequisite for the establishment of the rule of law in Libya." It is incumbent upon the Government of Libya to ensure that detainees are either tried within a reasonable time and with full respect for their due process rights or released.

Mr. President, 

The time is also past due for resolution of the Tawergha issue.  My Office has encouraged the Libyan authorities to facilitate a visit by representatives from the local councils of Misrata and Tawergha to New York to meet and engage with Council members. It is envisaged that this visit could materialize next week.  The main purpose of this visit is for these representatives to make their efforts better understood.  I must emphasize that from the perspective of the jurisdiction of the International Criminal Court, the mass displacement of the Tawerghans remains an issue of concern to my Office, and undoubtedly, to the international community as a whole. I am confident that I share this concern with members of this Council, and I hope that within the next six months, the representatives of Tawergha and Misrata will be able to update this Council on progress they have made in redressing the displacement of the inhabitants of Tawergha.

In conclusion, Mr. President, it is worth recalling that it was for reasons of peace and security, and indeed, the suffering and plight of the Libyan people that this Council galvanized to unanimously adopt Resolution 1970, and more recently, Resolution 2174. The Libyan people's hopes and aspirations for a peaceful and stable State that thrives and sits firmly on the pillars of justice and accountable-government are yet to be realized. We therefore owe it to them to coordinate our efforts more effectively to promote a peaceful and just solution to the current situation in Libya. In accordance with its mandate, my Office is certainly attempting to do its part in strengthening justice and accountability for international crimes in Libya and is coordinating, as appropriate, with the Libyan authorities. There is certainly room for all of us to do more.  To be sure, we must not fail Libya, but Libya must also not fail itself.

I thank you, Mr. President, Your Excellencies, for your attention.

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Source : Office of the Prosecutor